| Hamilton v Touseull |
| 2008 NY Slip Op 01306 [48 AD3d 520] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Samuel B. Hamilton et al., Appellants, v Charles Touseullet al., Respondents. |
—[*1] Rabinowitz & Galina, Mineola, N.Y. (Michael M. Rabinowitz of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal froman order of the Supreme Court, Nassau County (McCarty, J.), entered January 5, 2007, whichdenied that branch of their motion which was for summary judgment and denied that branch oftheir separate motion pursuant to CPLR 2301 and 2302 (b) for the issuance of various subpoenasduces tecum.
Ordered that the order is affirmed, with costs.
"[T]he proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate theabsence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Failure to make such ashowing requires the denial of the motion, regardless of the sufficiency of the opposing papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). We agree with theSupreme Court that the plaintiffs failed to demonstrate, prima facie, their entitlement to judgmentas a matter of law since the affidavit they submitted in support of their motion consisted only ofunsupported allegations.
The Supreme Court also properly denied that branch of the plaintiffs' separate motion whichwas for the issuance of various subpoenas duces tecum. The plaintiffs failed to establish that theinformation they sought to discover could not be obtained from other sources (see GoldenMark Maintenance v Alarcon, 265 AD2d 377 [1999]; Matter of Validation ReviewAssoc. [Berkun—Schimel], 237 AD2d 614, [*2]615[1997]; Schwarz v Schwarz, 227 AD2d 611, 612 [1996]).
The plaintiffs' remaining contentions either are not properly before this Court (see Morris v Queens-Long Is. Med. Group,P.C., 43 AD3d 394, 395 [2007]; Katz v Katz, 68 AD2d 536 [1979]) or arewithout merit. Spolzino, J.P., Florio, Miller and Dickerson, JJ., concur.