| Blue Diamond Fuel Oil Corp. v Lev Mgt. Corp. |
| 2013 NY Slip Op 00887 [103 AD3d 675] |
| February 13, 2013 |
| Appellate Division, Second Department |
| Blue Diamond Fuel Oil Corp., Respondent, v LevManagement Corp., Defendant, and Amsterdam Hospitality Group, LLC, et al.,Appellants. |
—[*1] Platzer, Swergold, Karlin, Levine, Goldberg & Jaslow LLP, New York, N.Y.(Steven D. Karlin of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, all the defendantsexcept 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'smotion which was for summary judgment on the issue of liability as against them anddenied their cross motion for leave to serve a second amended answer, to compel theplaintiff to respond to their discovery demands and to appear for depositions, and toextend 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 ofliability against the appellants is denied, and the appellants' cross motion for leave toserve a second amended answer, to compel the plaintiff to respond to their discoverydemands and to appear for depositions, and to extend the time to file a note of issue isgranted.
The Supreme Court erred in granting that branch of the plaintiff's motion which wasfor summary judgment on the issue of liability against the appellants. The evidencesubmitted by the plaintiff did not establish its prima facie entitlement to judgment as amatter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Hamilton v Touseull, 48 AD3d520 [2008]; cf. Castle OilCorp. v Bokhari, 52 AD3d 762 [2008]; Eagle Work Clothes, Inc. v Gent Uniform Rental Corp., 30AD3d 562 [2006]; CasaRedimix Concrete Corp. v MacQuesten Gen. Contr., Inc., 14 AD3d 641[2005]). Failure to make such a showing required the denial of the motion, regardless ofthe sufficiency of the opposing papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d at 853).
Additionally, the Supreme Court should have granted that branch of the appellants'cross motion which was for leave to serve a second amended answer, as the proposedamendment was not palpably insufficient or patently devoid of merit, and there was noevidence that it would prejudice or surprise the plaintiff (see Matter of Roberts v Borg,35 AD3d 617 [2006]; Bolanowski v Trustees of Columbia Univ. in City of N.Y., 21AD3d 340 [2005]). The Supreme Court also should have [*2]granted those branches of the appellants' cross motionwhich were to compel the plaintiff to respond to the appellants' discovery demands andto appear for depositions, and to extend the time to file a note of issue, as the discoverysought by the appellants was "material and necessary" within the meaning of CPLR 3101(a) (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406, 407 [1968]).
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Dillon, J.P., Angiolillo, Leventhal and Miller, JJ., concur.