Bladykas v. County of Nassau

47 A.D.3d 652, 848 N.Y.S.2d 901

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Martin, J.), entered April 6, 2007, as denied that branch of its motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law since it did not tender sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

In reaching our determination herein, we have not considered evidence which is dehors the record with respect to the order appealed from (see Juarbe v City of New York, 303 AD2d 462 [2003]; Matter of Hogg v Cianciulli, 247 AD2d 474, 475 [1998]; Gintell v Coleman, 136 AD2d 515, 516-517 [1988]; see also Krzyanowski v Eveready Ins. Co., 28 AD3d 613 [2006]).

The defendant’s remaining contentions are without merit. Rivera, J.E, Spolzino, Garni and McCarthy, JJ., concur.