D.L. Brenner & Sons, Inc. v. Quaker State Oil Refining Corp.

190 A.D.2d 774, 594 N.Y.S.2d 636, 1993 N.Y. App. Div. LEXIS 1433

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 1993
• Status: Published

Opinion

— In an action to recover damages for breach of warranty, negligence, and fraud, the plaintiff appeals from an order of the Supreme Court, Nassau County (Levitt, J.), dated October 1, 1990, which granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion, inter alia, for additional discovery.

Ordered that the order is affirmed, with costs.

In a motion for summary judgment the movant "bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law” (Holtz v Niagara Mohawk Power Corp., 147 AD2d 857, 858). The opposing party then must present some admissible proof that would require a trial of material questions of fact (see, Ferber v Sterndent Corp., 51 NY2d 782, 783). We find that the defendant demonstrated its entitlement to summary judgment and that the plaintiff failed to meet its burden with respect to each cause of action in the complaint. Specifically, the plaintiff has failed to show through legally admissible evidence that it lost its customers because of any breach of warranty, negligence, or fraud on the part of the defendant.

In light of our determination, we need not reach the plaintiff’s remaining contentions. Thompson, J. P., Rosenblatt, Lawrence and Miller, JJ., concur.