O'Melia v. Antoncic

176 A.D.2d 792, 575 N.Y.S.2d 121, 1991 N.Y. App. Div. LEXIS 12993

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1991
• Status: Published

Opinion

— In an action, inter alia, to recover real estate brokerage commission fees allegedly owed to the plaintiffs, the defendants appeal from so much of an order of the Supreme Court, Nassau County (McCabe, J.), entered January 10, 1990, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendants’ motion for summary judgment is granted and the complaint is dismissed.

We find that the Supreme Court should have granted the defendants’ motion for summary judgment. The affidavit in support of the defendants’ motion sufficiently established their defense so as to warrant a grant of summary judgment in their favor (see, Daliendo v Johnson, 147 AD2d 312; see also, Frank Corp. v Federal Ins. Co., 70 NY2d 966). The plaintiffs’ conclusory and unsubstantiated allegations were insufficient to raise a material triable issue of fact (see, Frank Corp. v Federal Ins. Co., supra; Zuckerman v City of New York, 49 NY2d 557; Spearmon v Times Sq. Stores Corp., 96 AD2d 552).

The plaintiffs, while responding to the defendants’ discovery requests, had approximately four months prior to the defendants’ motion to make discovery requests of their own, but failed to do so. Under these circumstances, the plaintiffs’ failure to request discovery does not bar summary judgment (see, Guarino v Mohawk Containers Co., 59 NY2d 753; Monteleone v Incorporated Vil. of Floral Park, 123 AD2d 312; Witte v Incorporated Vil. of Port Washington N., 114 AD2d 359). Mangano, P. J., Sullivan, Rosenblatt and O’Brien, JJ., concur.