Flower City Insulation Sales & Contractors, Inc. v. Board of Education—Marcus Whitman Central School District

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the follow*993ing Memorandum: Supreme Court properly denied summary judgment to either party on the second cause of action. Questions of fact remain with respect to whether plaintiff is excused from fulfilling the conditions for payment of the retainage under the contract (see, Flower City Insulation Sales & Contrs. v Board of Educ., 190 AD2d 1018,1019). Defendant is, however, entitled to summary judgment dismissing the fifth cause of action. The evidence establishes that defendant received no…