Opinion
October 23, 1989
Appeal from the Supreme Court, Westchester County (Ruskin, J.).
Ordered that the order is affirmed, with costs.
We find that material issues of fact exist as to whether the house which was the subject of the contract between the parties was constructed in compliance with the terms and conditions of the contract and whether plaintiffs breached the contract by failing to close. To grant summary judgment it must clearly appear that no material and triable issues of fact are presented (see, Coley v Michelin Tire Corp., 99 A.D.2d 795). Brown, J.P., Lawrence, Kooper and Spatt, JJ., concur.