Opinion
July 12, 1985
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Dillon, P.J., Hancock, Jr., Doerr, Denman and O'Donnell, JJ.
Judgment unanimously reversed, on the law and facts, with costs, and complaint dismissed. Memorandum: It was error to award judgment to plaintiff on its action for breach of contract on the theory of substantial performance. In order to recover for substantial performance, the plaintiff must establish that its failure to perform was inadvertent or unintentional and that the defects were insubstantial ( see, Jacob Youngs v. Kent, 230 N.Y. 239; American Std. v. Schectman, 80 A.D.2d 318, lv denied 54 N.Y.2d 604; Triple M. Roofing Corp. v. Greater Jericho Corp., 43 A.D.2d 594). Plaintiff's failure to perform the remaining items of the contract was intentional and the work which remained to be done was significant. The fact that plaintiff allocated $800 or 13% of the contract price for the remaining work indicates that it was not insubstantial ( see, e.g., Hollister v. Mott, 132 N.Y. 18; Triple M. Roofing Corp. v. Greater Jericho Corp., supra; Fox v. Davidson, 36 App. Div. 159).