Opinion
March 16, 1990
Appeal from the Supreme Court, Monroe County, Boehm, J.
Present — Callahan, J.P., Doerr, Denman and Lawton, JJ.
Order unanimously affirmed with costs. Memorandum: Plaintiff contends that the trial court erred in denying its motion for summary judgment. In support of its motion, plaintiff met its burden of proof by submitting evidence of defendants' breach of their lease obligations sufficient to warrant the court, as a matter of law, in directing judgment in its favor (see, Zuckerman v City of New York, 49 N.Y.2d 557, 562). In response, defendants provided evidentiary facts that a structural defect in the building rendered it untenantable, which relieved them of their liability to pay rent. For purposes of this motion, those facts must be accepted as true and the decision must be based on the version of facts most favorable to the nonmoving party (see, Strychalski v Mekus, 54 A.D.2d 1068, 1069). Since plaintiff failed to respond to defendants' assertions, they are deemed admitted (see, Laye v Shepard, 48 Misc.2d 478, affd 25 A.D.2d 498). Since a triable issue of fact exists, summary judgment was properly denied (see, Hourigan v McGarry, 106 A.D.2d 845).