| Cooper v Sun Am., LLC |
| 2012 NY Slip Op 01206 [92 AD3d 715] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Jerome Cooper et al., Appellants, v Sun America, LLC, etal., Respondents. (And a Third-Party Action.) |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Nassau County (Feinman,J.), entered November 29, 2010, as denied their motion for summary judgment, in effect, on theissue of liability on their cause of action to recover damages for breach of contract.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2002, the plaintiffs purchased a condominium unit from the defendant Sun America, LLC,the sponsor of the White Sands Condominium, pursuant to a purchase agreement thatincorporated a condominium offering plan. In 2006, the plaintiffs commenced this action againstSun America, LLC, and its individual members (hereinafter collectively the defendants), interalia, to recover damages for breach of contract, alleging that the plaintiffs' unit experienced leaksand flooding due to improper construction of the condominium's exterior walls, which thedefendants had failed to repair.
In 2010, the plaintiffs moved for summary judgment, in effect, on the issue of liability ontheir cause of action to recover damages for breach of contract, arguing that the defendants hadbreached an express warranty in the offering plan regarding major structural defects. In the orderappealed from, the Supreme Court, inter alia, denied the motion on the ground that discovery hadnot been completed. The plaintiff appeals, and we affirm the order insofar as appealed from, buton a different ground.
The plaintiffs failed to meet their burden of demonstrating the absence of any triable issue offact regarding whether the alleged defects were covered by the subject warranty (see Patel v MBG Dev., 7 AD3d498, 500 [2004]). Failure to make such a prima facie showing requires the denial of themotion, regardless of the sufficiency of the opposing papers (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Skelos, J.P., Leventhal, Lott and Miller, JJ., concur.