526 N.Y.S. 2d 279 (App. Div. 1988).

Defendant filed a counterclaim against Plaintiff for breach of contract.  Plaintiff was a subcontractor on Defendant’s construction job, and had performed most but not all of its work.

Plaintiff argued that its failure to perform all of the work was excused because of a strike and picket line against Defendant at the construction site by the steamfitters’ union. Defendant, however, had established a reserve gate for Plaintiff’s employees so they would not have to cross the picket line.

The court of appeal held that it was proper for the trial court to grant Defendant’s motion for summary judgment on its counterclaim because “[a]t best, plaintiff asserts that performance of the subcontract was difficult because of the strike; however, it has not shown that performance was rendered impossible.”

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