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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Stivers v. Brownell, 63 A.D.3d 1516 (2009)

Citation
Stivers v. Brownell, 63 A.D.3d 1516 (2009)
Parent Document
Stivers v. Brownell, 63 A.D.3d 1516 (2009)
Jurisdiction
New York (state)
Effective Date
2009-06-05

Full Text

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*1519We further conclude that the court properly denied that part of plaintiffs’ motion seeking dismissal of defendant’s counterclaims. Although plaintiffs correctly contend that “ ‘a party to a contract cannot rely on the failure of another to perform when he [or she] has frustrated or prevented the performance’ ” (Hidden Meadows Dev. Co. v Parmelee’s Forest Prods., 289 AD2d 642, 644 [2001]; see Kooleraire Serv. & Installation Corp. v Board of Educ. of City of N.Y., 28 NY2d 101, 106 [1971]), plaintiffs submitted evidence raising an issue of fact whether they could have performed under the terms of the contract. The submissions of both plaintiffs and defendant include evidence that the damage to the property may have been too extensive for repairs to have been completed before the lease expired.