Marks v. Radmin

205 A.D.2d 595, 613 N.Y.S.2d 638, 1994 N.Y. App. Div. LEXIS 6188

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1994
• Status: Published

Opinion

In an action for an accounting and a declaratory judgment that the plaintiff is the owner of 1% of the common stock of the defendant BMW (N) Holding Corp., the plaintiff appeals from an order of the Supreme Court, Nassau County (Christ, J.), dated December 20, 1991, which granted the defendants’ motion for summary judgment.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment declaring that the plaintiff is not the owner of 1% of the common stock of the defendant BMW (N) Holding Corp.

After the defendants made a prima facie showing of entitlement to judgment in their favor as a matter of law, it was incumbent upon the plaintiff to come forward with evidence sufficient to raise a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). The plaintiff failed to do so. The Supreme Court therefore properly granted the defendants’ motion.

We note, however, that since this is, in part, a declaratory judgment action, a judgment should be entered granting declaratory relief in favor of the defendant BMW (N) Holding Corp. (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

We have examined the plaintiff’s remaining contentions and find them to be without merit. Lawrence, J. P., Copertino, Altman and Goldstein, JJ., concur.