In an August 24, 2010, decision by Justice Platkin in connection with a breach-of-contract action between plaintiff-cement manufacturer and defendant-fly ash supplier, and on the parties’ cross-motions for summary judgment on the issue of plaintiff’s performance under the parties’ service agreement, the court granted plaintiff’s motion and dismissed defendant’s counterclaim, finding that plaintiff had performed its obligations under the agreement in all material respects. Specifically, the court found that defendant’s supply obligations were not limited by plaintiff’s obligation to provide defendant with consumption forecasts, which the court interpreted as a mere duty and not a condition precedent under the agreement, especially considering the fact that defendant was aware of future quantity increases from plaintiff, never raised a formal objection with plaintiff, and elected to continue to perform under the agreement and take advantage of its benefits. The court also found that the agreement’s exclusivity clause was not an unconditional right of first refusal but merely provided defendant with an opportunity to manage an alternate supplier and that, while plaintiff violated this clause by failing first to give notice to defendant of its intention to obtain fly ash from another supplier, the breach did not rise to the level of material breach and excuse defendant’s own performance under the agreement. Because defendant failed to demonstrate that it sustained monetary damages as a result of plaintiff’s violation of the exclusivity clause, the court dismissed defendant’s counterclaim.