Carltun on the Bay Kosher Caterers, Ltd. v. Makani

Appellate Division of the Supreme Court of New York

Carltun on the Bay Kosher Caterers, Ltd. v. Makani

295 A.D.2d 464, 744 N.Y.S.2d 674, 2002 N.Y. App. Div. LEXIS 6411

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 17, 2002

StatusPublished

Cited by2 cases

This text of 295 A.D.2d 464 (Carltun on the Bay Kosher Caterers, Ltd. v. Makani) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carltun on the Bay Kosher Caterers, Ltd. v. Makani, 295 A.D.2d 464, 744 N.Y.S.2d 674, 2002 N.Y. App. Div. LEXIS 6411 (N.Y. Ct. App. 2002).

Pincite

Opinion

—In an action to recover money due pursuant to a contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated January 28, 2002, which denied its motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

The plaintiff made out its prima facie case of entitlement to summary judgment by showing the existence of a contract to cater the defendant’s wedding reception, that it did so, and that the defendant failed to pay for the catering service. The burden therefore shifted to the defendant to show the existence of a triable factual issue. The defendant failed to do so. The affidavits of the defendant and his witness are insufficient to do more than show the semblance of a factual issue as to whether or not the plaintiff properly catered the reception. Thus, in this case, it was error for the Supreme Court to have found the existence of a triable factual issue sufficient to warrant the denial of the motion (see Alvarez v Prospect Hosp., 68 NY2d 320; Pizzi v Bradlee’s Div. of Stop & Shop, 172 AD2d 504).

The parties’ remaining contentions are either without merit or need not be reached in light of this determination. Florio, J.P., Smith, Friedmann and H. Miller, JJ., concur.

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—In an action to recover money due pursuant to a contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated January 28, 2002, which denied its motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

The plaintiff made out its prima facie case of entitlement to summary judgment by showing the existence of a contract to cater the defendant’s wedding reception, that it did so, and that the defendant failed to pay for the catering service. The burden therefore shifted to the defendant to show the existence of a triable factual issue. The defendant failed to do so. The affidavits of the defendant and his witness are insufficient to do more than show the semblance of a factual issue as to whether or not the plaintiff properly catered the reception. Thus, in this case, it was error for the Supreme Court to have found the existence of a triable factual issue sufficient to warrant the denial of the motion (see Alvarez v Prospect Hosp., 68 NY2d 320; Pizzi v Bradlee’s Div. of Stop & Shop, 172 AD2d 504).

The parties’ remaining contentions are either without merit or need not be reached in light of this determination. Florio, J.P., Smith, Friedmann and H. Miller, JJ., concur.

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Bluebook (online)

295 A.D.2d 464, 744 N.Y.S.2d 674, 2002 N.Y. App. Div. LEXIS 6411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carltun-on-the-bay-kosher-caterers-ltd-v-makani-nyappdiv-2002.

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