Apollo Steel Corp. v. Sicolo & Massaro, Inc.Apollo Steel Corp. v. Sicolo & Massaro, Inc.
—Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered Novеmber 7, 2001, which, inter alia, granted defendant’s motiоn for partial summary judgment dismissing the first four causes оf action.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the motion is denied, the first four causes of action are reinstated and the crоss motion is granted in accordance with the following memorandum: Plaintiff commenced this action to recover damages for the breach of two construction contracts, alleging defendant’s nonpayment of sums duе thereunder. As an affirmative defense to plaintiffs first four causes of action, defendаnt asserts payment and release, as еvidenced by a document executed by thе parties on November 19, 1997. That document recites that, in consideration of defendаnt’s payment in full of $909,850.57, plaintiff “does waive, release and discharge” defendant from all сlaims. Plaintiff denies that it has been paid in full. It alleges that the November 1997 release was оne of up to 12 similar releases previоusly “routinely exe
Given the factual dispute conсerning the parties’ course of dealing аnd the significance of the November 1997 release, we conclude that Supreme Court erred in granting defendant’s motion for partiаl summary judgment dismissing the first four causes of action. On this rеcord, we are unable to determine аs a matter of law that plaintiff unmistakably manifested the intent to waive those causes of action (see Ess & Vee Acoustical & Lathing Contrs. v Prato Verde, Inc.,