Productive Recycling, Inc. v. Town of Smithtown , 636 N.Y.S.2d 660 ( 1995 )

—In an action, inter alia, to recover damages for breach of contract, the defendants appeal and the plaintiffs cross-appeal, as limited by their respective briefs, (1) from so much of an order of the Supreme Court, Suffolk County (Werner, J.), dated January 27, 1994, as denied their respective motions for summary judgment and (2) from so much of an order of the same court dated November 1, 1994, as, upon reargument, adhered to the original determination.

Ordered that the appeal and the cross appeal from the order dated January 27, 1994, are dismissed, without costs or disbursements, since that order was superseded by the order dated November 1, 1994, made upon reargument; and it is further,

Ordered that the order dated November 1, 1994, is affirmed insofar as appealed and cross appealed from, without costs or disbursements.

Neither the plaintiff nor the defendants is entitled to summary judgment. There is an issue of fact regarding whether the plaintiff materially breached or otherwise rendered unperformable its contract to recycle the defendant town’s yard waste (see generally, CPLR 3212 [b]). Rosenblatt, J. P., Ritter, Hart and Krausman, JJ., concur.