| Schulman Family Enters. v Schulman |
| 2013 NY Slip Op 02066 [104 AD3d 934] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Schulman Family Enterprises et al.,Appellants-Respondents, v David B. Schulman et al.,Respondents-Appellants. |
—[*1] Wickham, Bressler, Gordon & Geasa, P.C., Mattituck, N.Y. (Eric J. Bressler ofcounsel), for respondents-appellants.
In an action, inter alia, to recover damages for breach of a partnership agreement, theplaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (Molia,J.), dated November 7, 2011, as denied that branch of their motion which was forsummary judgment on the fourth cause of action, which alleged breach of a partnershipagreement, and the defendants cross-appeal from so much of the same order as deniedthat branch of their motion which was for summary judgment dismissing the complaintand granted those branches of the plaintiffs' motion which were, in effect, for leave toamend and to extend a notice of pendency.
Ordered that the order is affirmed insofar as appealed and cross-appealed from,without costs or disbursements.
"The proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence in admissibleform to demonstrate the absence of any material issues of fact" (Moore v 3 Phase Equestrian Ctr.,Inc., 83 AD3d 677, 678 [2011]; see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]). "Failure to make such a prima facie showing requires the denial of themotion, regardless of the sufficiency of the opposing papers" (Cooper v Sun Am., LLC, 92AD3d 715, 716 [2012]; see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). Here, the Supreme Court properly determined that the plaintiffsfailed to establish, prima facie, the absence of any material issues of fact with respect tothe fourth cause of action, which alleged breach of a partnership agreement. Thus, thecourt properly denied that branch of the plaintiffs' motion which was for summaryjudgment on that cause of action (see Alvarez v Prospect Hosp., 68 NY2d at 324;Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Cooper v Sun Am.,LLC, 92 AD3d at 716; Moore v 3 Phase Equestrian Ctr., Inc.,, 83 AD3d at678).
The Supreme Court also properly determined that the defendants failed to establish,prima facie, their entitlement to judgment as a matter of law dismissing the complaint(see Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ.Med. Ctr., 64 NY2d at 853). The [*2]defendants'submissions revealed material issues of fact with respect to each cause of action. Thus,the court properly denied that branch of the defendants' motion which was for summaryjudgment dismissing the complaint (see Zuckerman v City of New York, 49NY2d 557, 562 [1980]).
Contrary to the defendants' contention, the Supreme Court properly granted thosebranches of the plaintiffs' motion which were, in effect, for leave to amend a notice ofpendency to correct a minor typographical error in the legal description of the subjectproperty and to extend the notice of pendency (see CPLR 2001, 6501, 6513; Mallick v Farfan, 66 AD3d649, 649-650 [2009]; KeyBank Natl. Assn. v Stern, 14 AD3d 656, 657 [2005]; Gross v CastletonHous. Corp., 271 App Div 980 [1947]).
The parties' remaining contentions are without merit. Mastro, J.P., Austin, Cohen andMiller, JJ., concur. [Prior Case History: 33 Misc 3d 1234(A), 2011 NY Slip Op52238(U).]