G.K. Alan Assoc., Inc. v. Lazzari

12 A.D.3d 346, 783 N.Y.S.2d 306, 2004 N.Y. App. Div. LEXIS 12902

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 2004
• Status: Published

Opinion

In an action to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Jonas, J.), entered March 15, 2004, as denied that branch of its motion which was for summary judgment on the complaint.

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

As the proponent of the motion for summary judgment, the plaintiff bore the initial burden of establishing its entitlement to judgment on the complaint and the absence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; cf. Zimmerman v Tarshis, 300 AD2d 477, 478 [2002]). The plaintiff failed to meet this burden, as a question of fact exists regarding its own performance under the contract (see General Elec. Capital Auto Lease v D’Agnese, 239 AD2d 462, 463 [1997]). Therefore, the Supreme Court properly denied that branch of the plaintiffs motion which was for summary judgment on the complaint.

The plaintiffs remaining contentions are without merit. S. Miller, J.P., Luciano, Crane and Skelos, JJ., concur.