Tokayer v. Seetin Design, Inc.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered May 25, 2005, which denied plaintiffs’ motion for partial summary judgment, unanimously affirmed, with costs.

Inasmuch as the record presents a triable issue as to whether plaintiffs repudiated the contract sued upon, plaintiffs were not entitled to summary judgment upon their cause of action for breach of contract (see Tenavision, Inc. v Neuman, 45 NY2d 145 , 150 [1978]; Gardiner Intl., Inc. v J.W. Townsend & Assoc., Inc., 13 AD3d 246 [2004]; cf. Key Bank of N.Y. v K.H. Assoc., 210 AD2d 769 [1994]). Nor were plaintiffs entitled to summary judgment upon their Lien Law cause of action. The record, which includes extensive documentary evidence supportive of an inference that defendant contractor appropriately applied the funds paid it under the subject home improvement contract, did not permit the court to conclude, as a matter of law, that trust funds were diverted. Concur—Saxe, J.P., Marlow, Williams, Sweeny and Catterson, JJ.