
    Lucius R. Boley, Respondent, v Pavarini Construction Co., Inc., Appellant.
    [607 NYS2d 262]
   Order, Supreme Court, New York County (Carol Huff, J.), entered June 17, 1992, which, insofar as appealed from, denied defendant Pavarini’s motion pursuant to CPLR 3212 for summary judgment dismissing the first cause of action of the complaint, unanimously affirmed, with costs.

Plaintiff, a licensed professional engineer engaged, inter alia, in the placement and supervision of contracts for the construction of buildings, commenced the underlying action against defendant Pavarini, a general contracting and construction management company, seeking to recover damages for breach of an express written contract between the parties, dated October 10, 1985, and compensation for professional services that the plaintiff allegedly rendered to Pavarini under the parties’ agreement in securing construction contracts for Pavarini to build on a 42-acre site in Huntington, New York.

The IAS Court properly determined that summary judgment dismissing the plaintiff’s first, and only remaining, cause of action for breach of contract was precluded by triable issues of fact as to what extent, if at all, plaintiff’s efforts were instrumental in the award to defendant Pavarini of two building contracts on the construction site and as to whether defendant Pavarini had frustrated the plaintiff’s ability to complete the contract.

Plaintiff contends that the facts support a determination that he entered into a written agreement with defendant Pavarini pursuant to which the plaintiff was to be paid a commission if Pavarini obtained a construction contract on the particular site involved, regardless of who ultimately owned the property or let the contract; that the plaintiff was entitled to compensation under the agreement because he was the procuring cause of Pavarini’s construction contracts with the new construction site owners, Nor star Bank and Nothville/GAI, and, in the alternative, asserts that if he was not the procuring cause of the construction contracts, it is only because defendant Pavarini prevented him from fulfilling his contractual obligations.

In sharp contrast, defendant Pavarini contends that the plaintiff was not the procuring cause of the contracts awarded to Pavarini on the site and was therefore not entitled to any compensation and that plaintiff’s contention that Pavarini frustrated the contract by preventing the plaintiff from negotiating with the new site owners has no factual support in the record.

With respect to the first cause of action, the parties failed to satisfy their burden on their respective motion and cross motion for summary judgment, as a matter of law, by tendering sufficient evidence to eliminate any material issues of fact from the case with respect to the plaintiffs entitlement to compensation as the procuring cause of Pavarini’s contracts and as to whether Pavarini had, in bad faith, frustrated the plaintiff’s ability to complete the contracts (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853), particularly where, as here, the conflicting affidavits of the parties and their representatives, based upon personal knowledge of the underlying commercial dispute, which raise issues of credibility, indicate that genuine material issues of fact exist requiring a trial on the first cause of action for breach of contract (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341). Concur — Rosenberger, J. P., Ellerin, Asch, Nardelli and Williams, JJ.  