Morreale v. Serrano

67 A.D.3d 655, 886 N.Y.S.2d 910

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 2009
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract and unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Nassau County (Earga, J.), dated November 19, 2008, which denied his motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiffs motion for summary judgment on the complaint, inasmuch as the plaintiff failed to meet his initial burden of establishing, by admissible evidence, his prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). To the extent that the plaintiff relied on the defendant’s response to his notice to admit, that notice improperly sought the defendant’s admissions to facts that went to “the heart of the matter” (Lolly v Brookdale Univ. Hosp. & Med. Ctr., 45 AD3d [2007]; see Glasser v City of New York, 265 AD2d 526 [1999]). In light of our determination, we need not examine the sufficiency of the papers submitted by the defendant in opposition to the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The plaintiff’s remaining contentions are without merit. Rivera, J.P., Fisher, Belen and Austin, JJ., concur.