Opinion
November 16, 1992
Appeal from the Supreme Court, Suffolk County (Baisley, J.).
Ordered that the order is affirmed, with costs.
We reject the plaintiff's contention that its motion for partial summary judgment was improperly denied. Summary judgment is a drastic measure, and it should not be granted if there is any question as to the existence of a triable issue of fact (see, Andre v Pomeroy, 35 N.Y.2d 361, 364). Here, there are questions of fact as to whether the plaintiff completed or substantially completed all the duties under its construction contract. It is up to the fact finder to decide whether there was a breach, or whether there was substantial performance (see, Spence v Ham, 163 N.Y. 220, 225; Jacob Youngs v Kent, 230 N.Y. 239, 241; Wilson Roofing Painting v Jobco-E.R. Kelly Assocs., 128 A.D.2d 953, 954). Further, under the circumstances, the court properly denied the plaintiff's request to transfer the matter to a court of lesser monetary jurisdiction. Thompson, J.P., Eiber, Copertino and Pizzuto, JJ., concur.