Gordon v. Starrett City, Inc. , 83 A.D.2d 623 ( 1981 )

In an action to recover damages for breach of contract, defendants third-party plaintiffs appeal from an order of the Supreme Court, Nassau County (Di Paola, J.), dated January 6, 1981, which denied their motion for summary judgment against the plaintiff. Order reversed, on the law, with $50 costs and disbursements, motion granted and complaint dismissed. There was no inherent contradiction between paragraphs 13 and 18 of the contract. The effect of these paragraphs was that plaintiff agreed to commence performance of its obligations even though the contract was ultimately subject to approval by the New York State Division of Housing and Community Renewal. Plaintiff’s initiatory performance (which involved a comparatively modest expenditure of money and services) was therefore pursuant to the written contract, and not such as was unequivocally referable to an alleged modification thereof (cf. Rose v Spa Realty Assoc., 42 NY2d 338, 341). Further, the facts alleged by plaintiff in his opposing affidavits and accompanying exhibits created no issue of bad faith. Titone, J. P., Gibbons, Gulotta and Margett, JJ., concur.