NORTHEAST SORT FULFILLMENT CORP v. READER DIGEST ASSOCIATION INC (1999)

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Rudolph, J.), entered August 14, 1998, which denied its motion for partial summary judgment.

ORDERED that the order is affirmed, with costs.

The court properly denied the plaintiff's motion for partial summary judgment.   Questions of fact exist, inter alia, as to whether the defendants elected to continue to enjoy the benefits of the agreement between the parties and thus, having so elected, relinquished the right to terminate the agreement and to recover damages for the plaintiff's earlier alleged breaches in performance (see, Bigda v. Fischbach Corp., 849 F.Supp. 895;  Apex Pool Equip. Corp. v. Lee, 2d Cir., 419 F.2d 556), or whether the defendants merely afforded the plaintiff the opportunity to improve its performance but had no intention of waiving their right to terminate the agreement and recover damages in the event the plaintiff's performance did not improve (see, Seven-Up Bottling Co. v. PepsiCo, Inc., 686 F.Supp. 1015;  Hospital Computer Sys. v. Staten Is. Hosp., 788 F.Supp. 1351).

MEMORANDUM BY THE COURT.