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Benjamin Kurzban & Son, Inc. v. Board of Education

155 A.D.2d 662 Court N.Y. App. Div. Decision date 1989-11-27 English

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p. 662
In the Matter of Benjamin Kurzban & Son, Inc., Petitioner, v Board of Education of the City of New York, Respondent.

— Proceeding pursuant to CPLR article 78 to review a determination of the respondent dated January 19, 1988, which, after a hearing, declared that the petitioner was in default in completing performance under a contract.

Adjudged that the petition is granted, on the law, with costs, the determination is annulled, and the charge is dismissed.

Based on our review of the record, we find that, far from supporting the conclusion that the petitioner breached the contract, the evidence leads inexorably to the conclusion that by unjustifiably preventing the petitioner from carrying out its contractual obligations, the respondent breached the contract (see generally, Savin Bros. v State of New York, 62 AD2d 511 , affd 47 NY2d 934 ; 22 NY Jur 2d, Contracts, § 365). The respondent’s determination to the contrary is not supported by substantial evidence. Bracken, J. P., Sullivan, Harwood and Rosenblatt, JJ., concur.

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