         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1336
CA 12-00483
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


BAISCH, INC., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

THE PIKE COMPANY, INC., DEFENDANT-APPELLANT.


PHILLIPS LYTLE LLP, ROCHESTER (MARK J. MORETTI OF COUNSEL), FOR
DEFENDANT-APPELLANT.

PIRRELLO, MISSAL, PERSONTE & FEDER, ROCHESTER (STEVEN E. FEDER OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Kenneth
R. Fisher, J.), entered June 8, 2011. The order denied the motion of
defendant for partial summary judgment on its counterclaim.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

      Memorandum: Plaintiff commenced this action seeking, inter alia,
amounts allegedly owed under a construction contract, and defendant
asserted a counterclaim for breach of contract based, inter alia, on
plaintiff’s alleged failure to perform in a timely manner and to
provide adequate labor and materials. Supreme Court properly denied
defendant’s motion for partial summary judgment on liability on that
counterclaim. With respect to plaintiff’s alleged untimely
performance, we note that, “[w]hen a contract does not specify time of
performance, the law implies a reasonable time” (Savasta v 470 Newport
Assoc., 82 NY2d 763, 765, rearg denied 82 NY2d 889). “What
constitutes a reasonable time for performance depends upon the facts
and circumstances of the particular case” (id.). Here, the contract
states that “[t]ime is of the essence as to the prosecution of the
[plaintiff’s] Work,” and thus the failure to perform in a timely
manner would constitute a material breach (see Wilkinson v Hoelscher,
163 AD2d 819, 819). The contract does not, however, specify a time
for performance. Although reference is made to a “Schedule of Work,”
the record does not contain any such schedule, nor is there other
evidence of what would be a reasonable time. Thus, “th[e] issue
cannot be determined as a matter of law on this record” (O’Brien &
Gere Ltd. v NextGen Chem. Processes, Inc., 87 AD3d 1277, 1278; see
Lake Steel Erection v Egan, 61 AD2d 1125, 1126, lv dismissed 44 NY2d
848).

     Similarly, there is an issue of fact whether plaintiff failed to
                                 -2-                          1336
                                                         CA 12-00483

provide adequate labor and material precluding summary judgment (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). With
respect to labor, the contract specifies that plaintiff shall “supply
sufficient properly-skilled workmen,” but defendant’s repeated
statements that the project was understaffed are insufficient to
establish a breach of that contractual requirement as a matter of law.
Indeed, there is no evidence of the number of workers present and the
number necessary to complete the various tasks that plaintiff was
required to perform. We reject defendant’s further contention that it
established as a matter of law that plaintiff failed to provide
equipment in the quantity and quality required by the contract.
Although plaintiff admitted that it did not have any pumps on site,
there is no evidence in the record that defendant gave plaintiff
notice that its equipment was not of adequate quantity or quality or
that it gave plaintiff the opportunity to cure required by the
contract (see J.J. Juliano Constr. v Burgio & Campofelice, 273 AD2d
921, 921).

     Furthermore, defendant did not establish as a matter of law
plaintiff’s abandonment of the contract, i.e., an “ ‘unqualified and
clear refusal to perform with respect to the entire contract’ ” so as
to constitute an anticipatory repudiation of the contract (O’Connor v
Sleasman, 37 AD3d 954, 956, lv denied 9 NY3d 806). Defendant sent an
intent-to-terminate letter giving plaintiff 48 hours to cure alleged
breaches on the day before plaintiff “walked off the job.” Defendant
has not demonstrated that it was possible for plaintiff to cure within
that time period, and defendant’s employee testified that the parties
were in negotiations to resolve their disputes. In this context,
plaintiff’s actions did not rise to an unequivocal refusal to perform
the whole of the contract at any time (see id.). Finally, to the
extent that certain of defendant’s arguments are raised for the first
time on appeal, those contentions are not properly before us (see
Ciesinski v Town of Aurora, 202 AD2d 984, 985).




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
