| St. Clare Dev. Corp. v Porges |
| 2010 NY Slip Op 01473 [70 AD3d 925] |
| February 16, 2010 |
| Appellate Division, Second Department |
| St. Clare Development Corp., Respondent, v MichaelPorges et al., Defendants/Third-Party Plaintiffs-Appellants. St. Clare Development Corp. et al.,Third-Party Defendants-Respondents. |
—[*1] Murphy & Lynch, P.C., East Norwich, N.Y. (Nicholas J. Damadeo of counsel), forplaintiff-respondent and third-party defendants-respondents St. Clare Development Corp., JayMonroe, and Barbara Monroe.
In an action to recover damages for breach of contract, the defendants/third-party plaintiffsappeal from so much of an order of the Supreme Court, Nassau County (Martin, J.), enteredOctober 1, 2008, as granted those branches of the motion of the plaintiff and the third-partydefendants St. Clare Development Corp., Jay Monroe, and Barbara Monroe, which were forsummary judgment dismissing their first, second, third, and fifth affirmative defenses, their thirdcounterclaim to the extent that it seeks damages for breach of the Housing Merchant ImpliedWarranty, their fourth, fifth, sixth, and seventh counterclaims insofar as asserted against St.Clare Development Corp., and the first, second, third, fourth, fifth, and seventh third-partycauses of action insofar as asserted against Jay Monroe and Barbara Monroe, and granted theseparate motion of the third-party defendant Adam Chorzepa, doing business as DiamondCustom Construction, for summary judgment dismissing the third-party complaint insofar asasserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The respondents established their prima facie entitlement to judgment as a matter of law withrespect to the affirmative defenses, counterclaims, and third-party causes of action at issue. Theonly viable affirmative defenses and claims of the defendant/third-party plaintiffs were againstthe respondent St. Clare Development Corp. for breach of the limited warranty issued by it tothem and for breach of the escrow agreement entered into between it and them. In opposition, thedefendants/third-party plaintiffs failed to raise a triable issue of fact (see Zuckerman v Cityof New York, 49 NY2d 557 [1980]). Accordingly, the respondents were entitled to summaryjudgment dismissing the affirmative defenses, counterclaims, and third-party causes of action atissue. Fisher, J.P., Angiolillo, Belen and Lott, JJ., concur.