Opinion
June 6, 1994
Appeal from the Supreme Court, Westchester County (Colabella, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied the cross motion of Old Post Road Professional Building Annex, Inc. for partial summary judgment on the issue of liability in Action No. 2, and substituting therefor a provision granting the cross-motion of Old Post Road Professional Building Annex, Inc.; as so modified, the order is affirmed, insofar as appealed from, with costs to Old Post Road Professional Building Annex, Inc.
On May 3, 1989, ATP Construction Corp. (hereinafter ATP), entered into a contract with Old Post Road Professional Building Annex, Inc. (hereinafter Old Post Road), wherein ATP, as contractor, agreed to renovate an existing 3-story wood frame structure owned by Old Post Road for professional offices.
In support of its cross motion for summary judgment on the issue of liability in Action No. 2, Old Post Road submitted probative evidence including, inter alia, an engineer's report, a letter from the supervising architect, and affidavits from the Building Inspector and the Deputy Building Inspector of the Town of Lewisboro, which demonstrated that ATP breached the contract with Old Post Road. Specifically, this evidence indicated that (1) the construction work performed by ATP concerning, inter alia, concrete footings and a block wall foundation was defective and had been rejected by the Building Department for failing to comply with building code requirements, and (2) ATP repeatedly ignored Old Post's notices advising it that the Building Department had rejected its work and requesting it to return to the site and remedy the defects. In the absence of any probative evidence to the contrary from ATP, Old Post Road is entitled to partial summary judgment on the issue of liability in Action No. 2 (see, Novick v. Sun Oil Co., 103 A.D.2d 800; Viaggio Sons v. City of New York, 91 A.D.2d 607).
We have reviewed the other arguments raised by ATP as an appellant and find them to be without merit (see, Sullivan v International Fid. Ins. Co., 96 A.D.2d 555; Knoll v. Cape Cod Sea Food Rest., 35 A.D.2d 976, affd 35 N.Y.2d 917; Abinet v Mediavilla, 5 A.D.2d 679; Rising v. Kendzie, 12 A.D.2d 988). Mangano, P.J., Bracken, Pizzuto and Hart, JJ., concur.