J.C. Drywall & Accoustical Contractors, Inc. v. West Shore Partners ( 1992 )

In an action to recover the balance due under a construction contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), entered September 11, 1990, which denied its motion for partial summary judgment and its request to transfer the balance of its claim to a court of lesser monetary jurisdiction pursuant to CPLR 325 (d).

Ordered that the order is affirmed, with costs.

We reject the plaintiffs 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 NY2d 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 NY 220, 225; Jacob & Youngs v Kent, 230 NY 239, 241; Wilson Roofing & Painting v Jobco-E. R. Kelly Assocs., 128 AD2d 953, 954). Further, under the circumstances, the court properly denied the plaintiffs request to transfer the matter to a court of lesser monetary jurisdiction. Thompson, J. P., Eiber, Copertino and Pizzuto, JJ., concur.