Blue Diamond Fuel Oil Corp. v. Lev Mgmt. Corp.

• Decision Date: 13 February 2013
• Citation: 103 A.D.3d 675,959 N.Y.S.2d 536,2013 N.Y. Slip Op. 00887
• Parties: BLUE DIAMOND FUEL OIL CORP., respondent, v. LEV MANAGEMENT CORP., defendant, Amsterdam Hospitality Group, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 675

959 N.Y.S.2d 536

2013 N.Y. Slip Op. 00887

BLUE DIAMOND FUEL OIL CORP., respondent,

v. LEV MANAGEMENT CORP., defendant,Amsterdam Hospitality Group, LLC, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 13, 2013.

Altman Schochet LLP, New York, N.Y. (Irina Fulman and Michael A. Valentine of counsel), for appellants.

Platzer, Swergold, Karlin, Levine, Goldberg & Jaslow LLP, New York, N.Y. (Steven D. Karlin of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for breach of contract, all the defendants except Lev Management Corp. appeal from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated July 8, 2011, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability as against them and denied their cross motion for leave to serve a second amended answer, to compel the plaintiff to respond to their discovery demands and to appear for depositions, and to extend the time to file a note of issue.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the appellants is denied, and the appellants' cross motion for leave to serve a second amended answer, to compel the plaintiff to respond to their discovery demands and to appear for depositions, and to extend the time to file a note of issue is granted.

The Supreme Court erred in granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the appellants. The evidence submitted by the plaintiff did not establish its prima facie entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;Hamilton v. Touseull, 48 A.D.3d 520, 852 N.Y.S.2d 244;cf. Castle Oil Corp. v. Bokhari, 52 A.D.3d 762, 861 N.Y.S.2d 730;Eagle Work Clothes, Inc. v. Gent Uniform Rental Corp., 30 A.D.3d 562, 817 N.Y.S.2d 144;Casa Redimix Concrete Corp. v. MacQuesten Gen. Contr., Inc., 14 A.D.3d 641, 788 N.Y.S.2d 619). Failure to make such a showing required the denial of the motion, regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Additionally, the Supreme Court should have...