Majority
p. 653Grossman Steel and Aluminum Corporation, Respondent, v Samson Window Corporation et al., Appellants. Argued June 11, 1981; decided June 29, 1981
p. 654
APPEARANCES OF COUNSEL
Michael C. Silberberg, Rodney A. Brown, Robert E. Pershes and Michael R. Sutton for appellants.
Joel M. Leifer for respondent.
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
The disputed language in paragraph 9 of the contract did not create a condition precedent to payment to the subcontractor, but rather established a time for payment (cf. Schuler-Hass Elec. Corp. v Aetna Cas. & Sur. Co., 40 NY2d
p. 655
883 ). Moreover, since the defendant insisted on trying the counterclaims on the merits, despite Special Term’s express offer to sever them because of possible prematurity, we cannot say as a matter of law that the Appellate Division abused its discretion in dismissing with prejudice when, as it eventuated there was “insufficient evidence in the record that the delay in payment was in fact due to any acts or omissions on the part of plaintiff” (see CPLR 5013).
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.
Order affirmed, with costs, in a memorandum.