Sazer v. Marino

Appellate Division of the Supreme Court of New York

Sazer v. Marino

280 A.D.2d 537, 720 N.Y.S.2d 406, 2001 N.Y. App. Div. LEXIS 1874

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 13, 2001

StatusPublished

Cited by3 cases

This text of 280 A.D.2d 537 (Sazer v. Marino) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sazer v. Marino, 280 A.D.2d 537, 720 N.Y.S.2d 406, 2001 N.Y. App. Div. LEXIS 1874 (N.Y. Ct. App. 2001).

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Opinion

—In an action, inter alia, to recover damages for breach of warranty of habitability, the defendant [538]*538appeals, as limited, by her brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), dated October 5, 1999, as denied that branch of her motion which was for summary judgment dismissing the complaint, denied that branch of her motion that was for summary judgment on her second, third, and fourth counterclaims, and granted the plaintiffs cross motion, inter alia, to dismiss her second, third, and fourth counterclaims.

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

Contrary to the appellant’s contention, she did not establish a prima facie case for summary judgment dismissing the complaint. There are triable issues of fact concerning whether the warranty of habitability was breached (see, Alvarez v Prospect Hosp., 68 NY2d 320; Frank Corp. v Federal Ins. Co., 70 NY2d 966).

Moreover, since the appellant moved for summary judgment before the respondents had an opportunity to depose her, summary judgment dismissing the complaint would be premature at this point (see, CPLR 3212 [f]; Hoxha v City of New York, 265 AD2d 379; Sazer v Marino, 266 AD2d 448).

The appellant’s remaining contentions are without merit. O’Brien, J. P., Goldstein, McGinity and H. Miller, JJ., concur.

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—In an action, inter alia, to recover damages for breach of warranty of habitability, the defendant [538]*538appeals, as limited, by her brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), dated October 5, 1999, as denied that branch of her motion which was for summary judgment dismissing the complaint, denied that branch of her motion that was for summary judgment on her second, third, and fourth counterclaims, and granted the plaintiffs cross motion, inter alia, to dismiss her second, third, and fourth counterclaims.

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

Contrary to the appellant’s contention, she did not establish a prima facie case for summary judgment dismissing the complaint. There are triable issues of fact concerning whether the warranty of habitability was breached (see, Alvarez v Prospect Hosp., 68 NY2d 320; Frank Corp. v Federal Ins. Co., 70 NY2d 966).

Moreover, since the appellant moved for summary judgment before the respondents had an opportunity to depose her, summary judgment dismissing the complaint would be premature at this point (see, CPLR 3212 [f]; Hoxha v City of New York, 265 AD2d 379; Sazer v Marino, 266 AD2d 448).

The appellant’s remaining contentions are without merit. O’Brien, J. P., Goldstein, McGinity and H. Miller, JJ., concur.

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Bluebook (online)

280 A.D.2d 537, 720 N.Y.S.2d 406, 2001 N.Y. App. Div. LEXIS 1874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sazer-v-marino-nyappdiv-2001.

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