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HUGH O'KANE ELECTRIC CO., LLC v. MASTEC NORTH AMERICA, INC.

45 A.D.3d 413 (2007)

846 N.Y.S.2d 51

HUGH O'KANE ELECTRIC CO., LLC, Respondent, v. MASTEC NORTH AMERICA, INC., Doing Business as WILDE CONSTRUCTION, Appellant.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided November 20, 2007.

Contrary to defendant's contention, the trial court correctly apprehended the question of fact to be determined at trial, in accordance with this Court's order (19 A.D.3d 126, 128 [2005]) and the parties' stipulation, as whether defendant should be estopped from asserting the pay-when-paid provision as an affirmative defense. The issue was not whether defendant specifically misrepresented the financial status of the project owner but whether...

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