Scarpulla v. County of Suffolk

128 A.D.2d 603, 513 N.Y.S.2d 16, 1987 N.Y. App. Div. LEXIS 44293

Opinion

In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Suffolk County (McInerney, J.), dated October 3, 1985, which denied their motion for summary judgment.

Ordered that the order is affirmed, with costs.

Upon a motion by a defendant for summary judgment, the issue is not whether the plaintiff can establish ultimate liability, but, rather, whether there exists a substantial issue of fact which requires a plenary trial (see, Barr v County of Albany, 50 NY2d 247; Alvord & Swift v Muller Constr. Co., 46 NY2d 276). Therefore, Special Term properly denied the defendants’ motion for summary judgment because the question of whether a contract exists, and, if it does, the nature of its terms, as evidenced by the two letters submitted by the plaintiffs, is in dispute. Niehoff, J. P., Lawrence, Weinstein and Sullivan, JJ., concur.