Monroe Piping & Sheet Metal, Inc. v. Edward Joy Co., 138 A.D.2d 941 (1988)

138 A.D.2d 941 (1988)

Monroe Piping & Sheet Metal, Inc., Appellant,
v.
Edward Joy Company, Respondent

Appellate Division of the Supreme Court of the State of New York, Fourth Department.March 4, 1988All concur, except Callahan, J. P., who dissents and votes to reverse and deny the motion on the ground that there is a triable issue of fact with respect to the impossibility defense.

Present — Callahan, J. P., Denman, Boomer, Pine and Davis, JJ.

Order affirmed without costs.

Memorandum:

Special Term properly granted defendant partial summary judgment on the issue of liability on its counterclaim for breach of contract. Defendant met its initial burden of showing entitlement to summary judgment as a matter of law. It was thus incumbent upon plaintiff to present evidence in admissible form to raise a triable issue of fact (see, Zuckerman v City of New York, 49 N.Y.2d 557). That plaintiff failed to do. Plaintiff conceded that it was unable to perform the work under the subcontract but stated that it was impossible to perform because of a strike against defendant by the steamfitters’ union. Recognizing that the strike placed pressure on plaintiff’s employees, defendant provided a separate gate for plaintiff’s employees to enter the construction site so that they would not have to cross a picket line. At best, plaintiff asserts that performance of the subcontract was

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difficult because of the strike; however, it has not shown that performance was rendered impossible. Plaintiff’s assertion that it performed most of its work goes to the question of damages, an issue which is not before us.