Randall Benderson 1993-1 Trust v. West-Herr Ford, Inc.

Majority

p. 907

Randall Benderson 1993-1 Trust et al., Appellants, v West-Herr Ford, Inc., et al., Respondents.

[715 NYS2d 172]

—Order unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action seeking specific performance and/or damages for breach of a contract for their sale of commercial property to defendants. Defendants deny any breach, allege in their fourth and fifth affirmative defenses that plaintiffs breached the contract by failing to perform their asbestos-removal obligations thereunder, and by their first and second counterclaims seek to recover their $75,000 deposit. On appeal, plaintiffs contend that Supreme Court erred in denying that part of their motion for summary judgment dismissing defendants’ fourth and fifth affirmative defenses and first and second counterclaims. We disagree. Plaintiffs failed to sustain their initial burden of demonstrating that their removal of the asbestos tile and related asbestos material from the building was carried out “in conformity with all applicable laws, rules and standards” as required by the contract. In any event,

p. 908

defendants raised triable issues of fact concerning whether plaintiffs complied with their asbestos-removal obligations under the contract, thus precluding summary judgment (see generally, Zuckerman v City of New York, 49 NY2d 557 , 562). (Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Green, J. P., Pine, Hurl-butt, Kehoe and Lawton, JJ.

Cases cited

Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 at 562 p. 908