Somers Realty Corp. v. Big "V" Properties, Inc.

149 A.D.2d 581, 540 N.Y.S.2d 677, 1989 N.Y. App. Div. LEXIS 4968

Opinion

In an action, inter alia, for a judgment declaring the respective rights and obligations of the parties with respect to an alleged easement burdening the defendant’s real property and certain rights of access to the defendant’s water and sewer systems, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), entered June 28, 1988, as denied its motion for summary judgment.

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

The defendant was not entitled to an award of summary judgment, as its papers submitted in support of the motion failed to include a copy of the pleadings as required by statute (see, CPLR 3212 [b]; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338; Freeman v Easy Glider Roller Rink, 114 AD2d 436). Inasmuch as the defendant failed to establish its prima facie entitlement to judgment as a matter of law, we need not reach the question of the sufficiency of the evidence presented by the plaintiff in opposition to the motion (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851). Rubin, J. P., Kooper, Sullivan and Balletta, JJ., concur.