September's Food Sys., LLC v BRE/Wellesley Props., LLC

2008 NY Slip Op 05672

Decided on June 17, 2008

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 17, 2008
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
HOWARD MILLER, J.P.
MARK C. DILLON
RUTH C. BALKIN
CHERYL E. CHAMBERS, JJ.
2007-00182
2007-04794
(Index No. 11594/06)






Katz & Klein, White Plains, N.Y. (Gerald M. Klein of counsel), for
appellants.
Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y.
(Barry S. Kantrowitz and Reginald H.
Rutishauser of counsel), for
respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limited by their notice of appeal and brief, (1) from stated portions of an order of the Supreme Court, Westchester County (Murphy, J.), entered November 30, 2006, as modified by an order entered December 15, 2006, and (2) from so much of an order of the same court (Giacomo, J.), entered May 8, 2007, as denied that branch of their cross motion which was for partial summary judgment on the complaint.

ORDERED that the appeal from the order entered November 30, 2006, as modified by the order entered December 15, 2006, is dismissed as abandoned; and it is further,

ORDERED that the order entered May 8, 2007, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The Supreme Court properly denied that branch of the plaintiffs' cross motion which was for partial summary judgment on the complaint. The plaintiffs failed to tender sufficient evidence to eliminate all material issues of fact and, accordingly, did not demonstrate their entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852; [*2]Zuckerman v City of New York, 49 NY2d 557, 562).
MILLER, J.P., DILLON, BALKIN and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court