CONQUEST CLEANING CORP v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY (2003)

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County (Beldock, J.H.O.), dated September 10, 2002, as, after a nonjury trial, is in favor of the defendant and against it dismissing the complaint.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

 The determination of the trial court should not be disturbed (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369;  Loughran v. Town of Eastchester, 299 A.D.2d 329, 749 N.Y.S.2d 172;  Matter of Hartford Ins. Co. v. Khan, 279 A.D.2d 524, 525, 718 N.Y.S.2d 872;  Matter of State Farm Mut. Auto. Ins. Co. v. Marshall, 275 A.D.2d 417, 418, 712 N.Y.S.2d 879).   The defendant acted properly in terminating the parties' contract, which provided that time was of the essence, since the plaintiff failed to substantially perform its obligations by the completion date set forth in the contract (see Steven Strong Dev. Corp. v. Washington Med. Assoc., 303 A.D.2d 878, 759 N.Y.S.2d 186;  Windjammer Homes v. Lieberman, 278 A.D.2d 411, 717 N.Y.S.2d 362;  New Day Bldrs. v. SJC Realty, 219 A.D.2d 623, 631 N.Y.S.2d 707;  Bilotto v. Webber, 172 A.D.2d 639, 568 N.Y.S.2d 438;  Jerry B. Wilson Roofing & Painting v. Jobco-E.R. Kelly Assocs., 128 A.D.2d 953, 513 N.Y.S.2d 263;  Sear-Brown Assocs. v. Blackwatch Dev. Corp., 112 A.D.2d 765, 492 N.Y.S.2d 266).   Furthermore, the defendant did not waive the right to terminate the contract by waiting several days after the completion date before terminating, during which time the plaintiff was simply re-cleaning areas of asbestos that were previously inadequately cleaned (see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512;  Bilotto v. Webber, supra).

The parties' remaining contentions are without merit.