Pronti v Cicora
2006 NY Slip Op 09354 [35 AD3d 1007]
December 14, 2006
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 14, 2007

Michael J. Pronti, Doing Business as Best Construction Company, Appellant, v Clyde A. Cicora, Respondent.


Lahtinen, J. Appeal from an order of the Supreme Court (O'Shea, J.), entered May 16, 2006 in Chemung County, which, inter alia, denied plaintiff's motion for summary judgment.

Plaintiff contracted with the 90-year-old defendant to install a new roof and gutters on defendant's home for $6,625, with defendant making a $3,325 down payment. When plaintiff had the shingles delivered, defendant allegedly immediately told plaintiff that they were not the quality he had requested. Plaintiff nevertheless hired an independent contractor, Michael Whritenour, to begin installing those shingles. Part way through the project, plaintiff had a dispute with Whritenour and fired him. However, defendant later hired Whritenour to complete the project. Plaintiff contends that this was done without his knowledge and that he had made plans to have the project completed. When defendant refused to pay plaintiff the balance due under the contract, plaintiff commenced this action for, among other things, breach of contract. Both parties eventually moved for summary judgment and Supreme Court, finding several factual issues, denied the motions. Plaintiff appeals.

We affirm. Summary judgment is appropriate only where there are no genuine issues of fact (see e.g. Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732, 733 [1999]). Here, Supreme Court amply set forth the various factual issues including, among others, whether plaintiff used an inferior quality of shingles and whether plaintiff substantially completed the [*2]project.

Crew III, J.P., Peters, Mugglin and Rose, JJ., concur. Ordered that the order is affirmed, with costs.