Monroe Dewey Partners v. MDR Development, Inc.

159 A.D.2d 948

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1990
• Docket: Appeal No. 1
• Status: Published

Opinion

Order unanimously affirmed with costs. Memorandum: Plaintiff contends that the trial court erred in denying its motion for summary judgment. In support of its motion, plaintiff met its burden of proof by submitting evidence of defendants’ breach of their lease obligations sufficient to warrant the court, as a matter of law, in directing judgment in its favor (see, Zuckerman v City of New York, 49 NY2d 557, 562). In response, defendants provided evidentiary facts that a structural defect in the building rendered it untenantable, which relieved them of their liability to pay rent. For purposes of this motion, those facts must be accepted as true and the decision must be based on the version of facts most favorable to the nonmoving party (see, Strychalski v Mekus, 54 AD2d 1068, 1069). Since plaintiff failed to respond to defendants’ assertions, they are deemed admitted (see, Laye v Shepard, 48 Mise 2d 478, ajfd 25 AD2d 498). Since a triable issue of fact exists, summary judgment was properly denied (see, Hourigan v McGarry, 106 AD2d 845). (Appeal from order of Supreme Court, Monroe County, Boehm, J. — summary judgment.) Present — Callahan, J. P., Doerr, Denman and Lawton, JJ.