20 East 74th Street, Inc. v. Minskoff

Per Curiam.

There would certainly be a triable issue in this case as to whether the building had been completed in accordance with the contract except for the presumption arising from the provision of the contract as to when the building was to be “ deemed ” completed and the giving of the releases. Appellant contends that the presumption and releases should not bar its proving defendants’ breach of contract to furnish “ a complete and well furnished building ” because both the contract provision and releases were for the purpose of giving effect to the co-operative plan and the obligation to complete the building in substantial accordance with the plans and specifications survived, and respondents recognized that by maintaining in the building employees and laborers after the closing on November 12,1947. The presumption is not to be disregarded and at least serves the salutary and useful purpose of concluding claims as to insubstantial matters and matters about which reasonable men might differ. But the agreement was drawn by the builders and because it has the effect of limiting their liability should be strictly construed against them. It should not be applied to the serious detriment of the apartment purchasers to permit the builders to assert and require the court to assume the contrary of what is patently true. The relation between the parties, the circumstances under which the releases were given and the apparent recognition by defendants of a surviving obligation to complete the building warrant a trial of the issues. The order granting summary judgment should be reversed and the motion denied.