TOKAYER v. Indamine Ochre Arch, Inc., Defendant. (2005)

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered May 25, 2005, which denied plaintiffs' motion for partial summary judgment, unanimously affirmed, with costs.

 In as much as the record presents a triable issue as to whether plaintiffs repudiated the contract sued upon, plaintiffs were not entitled to summary judgment upon their cause of action for breach of contract (see Tenavision, Inc. v. Neuman, 45 N.Y.2d 145, 150, 408 N.Y.S.2d 36, 379 N.E.2d 1166 [1978];  Gardiner Intl. v. J.W. Townsend & Assocs., 13 A.D.3d 246, 788 N.Y.S.2d 312 [2004];  cf. Key Bank of New York, N.A. v. K.H. Assocs., 210 A.D.2d 769, 620 N.Y.S.2d 537 [1994] ).   Nor were plaintiffs entitled to summary judgment upon their Lien Law cause of action.   The record, which includes extensive documentary evidence supportive of an inference that defendant contractor appropriately applied the funds paid it under the subject home improvement contract, did not permit the court to conclude, as a matter of law, that trust funds were diverted.