| N.Y. App. Div. | Jan 10, 1983
— In an action, inter alia, to recover damages for breach of contract, plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Dachenhausen, J.), dated April 29,1982, as denied the branch of its motion which was for partial summary judgment as against defendant Alanthus Corporation, and said defendant cross-appeals from so much of the same order as denied its cross motion for summary judgment. Order modified, on the law, by deleting the provision denying that branch of plaintiff’s motion which was for partial summary judgment against defendant Alanthus Corporation and substituting a provision granting said branch of the motion. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to plaintiff. Although the issue of substantial performance is usually one of fact, “if the inferences are certain, the question involves only a matter of law and is to be decided by the court” (22 NY Jur 2d, Contracts, § 320, pp 198-199; see Jacob & Youngs v Kent, 230 NY 239, mot for rearg den 230 NY 656; see, also, Travelers Ind. Co. v Buffalo Motor & Generator Corp., 58 AD2d 978). At bar, the primary purpose of the contract was fulfilled. The breaches alleged by defendant Alanthus are trivial in nature, particularly when contrasted with the substantial performance tendered by plaintiff pursuant to the terms of the contract. Further, plaintiff continually proceeded with the utmost good faith. In such a situation, the nonbreaching party is not excused from its obligations under the contract (see Jacob & Youngs v Kent, supra; Le Cordon Bleu v BPC Pub., 451F Supp 63; 22 NY Jur 2d, Contracts, §§ 315-318). Consequently, Special Term erred in denying the branch of plaintiff’s motion which was for partial summary judgment as against defendant Alanthus. We have considered the remaining contentions of defendant Alanthus and find them to be without merit. Damiani, J. P., O’Connor, Weinstein and Brown, JJ., concur.