LaSalle Bank National Ass'n v. City of Mount Vernon

288 A.D.2d 192, 732 N.Y.S.2d 380, 2001 N.Y. App. Div. LEXIS 10434

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), entered July 21, 2000, as denied those branches of its motion which were for summary judgment and to dismiss the defendant’s second and fifth affirmative defenses.

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

A party moving for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324; see, Zuckerman v City of New York, 49 NY2d 557, 562). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Contrary to the plaintiffs contentions, it failed to establish, as a matter of law, that it was entitled to the first payment for the telephone equipment leased by the defendant, regardless of whether the equipment was installed. Under these circumstances, that branch of the plaintiffs motion which was for summary judgment was properly denied.

The plaintiffs remaining contentions are without merit. Ritter, J. P., Friedmann, Florio and Cozier, JJ., concur.