| L'Aquila Realty, LLC v Jalyng Food Corp. |
| 2013 NY Slip Op 00896 [103 AD3d 692] |
| February 13, 2013 |
| Appellate Division, Second Department |
| L'Aquila Realty, LLC, Respondent, v Jalyng FoodCorp. et al., Defendants/Third-Party Plaintiffs-Appellants. General Trading Co., Inc.,Third-Party Defendant-Respondent. |
—[*1] Adam Seiden, Mount Vernon, N.Y., for plaintiff-respondent. Sanford B. Goldberg, New York, N.Y., for third-partydefendant-respondent.
In an action, inter alia, to recover damages for breach of a lease, thedefendants/third-party plaintiffs, Jalyng Food Corp., Arcedo Valdez, and LuchyFernandez, appeal, as limited by their brief, from so much of an order of the SupremeCourt, Westchester County (Tolbert, J.), entered October 13, 2011, as granted theplaintiff's motion for summary judgment on the complaint and denied their cross motion,in effect, for summary judgment dismissing the complaint and for summary judgment onthe third-party complaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting the plaintiff's motion for summary judgment on the complaint and substitutingtherefor a provision denying that motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The plaintiff did not demonstrate its prima facie entitlement to judgment as a matterof law on its complaint, because it failed to submit the relevant lease between it and thedefendants/third-party plaintiffs (see generally Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; CPLR 3212 [b]). The plaintiff could not rely on evidencesubmitted for the first time in its reply papers in support of its motion (see GJF Constr. Corp. vCosmopolitan Decorating Co., Inc., 35 AD3d 535, 535 [2006]; VoytekTech. v Rapid Access Consulting, 279 AD2d 470, 471 [2001]; see also Cotter v BrookhavenMem. Hosp. Med. Ctr., Inc., 97 AD3d 524, 525 [2012]; Malanga v Chamberlain, 71AD3d 644, 646 [2010]; David v Bryon, 56 AD3d 413, 414-415 [2008]; Barrera v MTA Long Is. Bus,52 AD3d 446, 447 [2008]; Rengifo v City of New York, 7 AD3d 773, 773 [2004]).The plaintiff's failure to make a prima facie showing requires the denial of its motion,regardless of the sufficiency of the opposition papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]). Consequently, the Supreme Courtshould have denied the plaintiff's motion for summary judgment on the complaint.[*2]
The defendants/third-party plaintiffs failed todemonstrate their prima facie entitlement to judgment as a matter of law dismissing thecomplaint or for summary judgment on the third-party complaint (see generallyAlvarez v Prospect Hosp., 68 NY2d at 324). Accordingly, the Supreme Courtproperly denied their cross motion in its entirety.
In light of the foregoing, we do not reach the parties' remaining contentions. Dillon,J.P., Angiolillo, Dickerson and Hinds-Radix, JJ., concur.