Opinion
06-23-2016
230 PARK AVENUE HOLDCO, LLC, Appellant, v. KURZMAN KARELSEN & FRANK, LLP, et al., Respondents.
Klein & Solomon, LLP, New York City (Jay B. Solomon of counsel), for appellant. Kurzman Karelsen & Frank, LLP, New York City (Charles Palella and Arthur R. Block of counsel), for respondents.
Klein & Solomon, LLP, New York City (Jay B. Solomon of counsel), for appellant.
Kurzman Karelsen & Frank, LLP, New York City (Charles Palella and Arthur R. Block of counsel), for respondents.
Opinion
MEMORANDUM: The order of the Appellate Division should be modified, without costs, by granting plaintiff's motion for summary judgment dismissing defendants' third affirmative defense, and, as so modified, affirmed and the certified question answered in the negative.
Plaintiff met its initial burden of demonstrating its entitlement to summary judgment dismissing defendants' third affirmative defense alleging that plaintiff breached the stipulation between the parties (see CPLR 3212[b] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Defendants' submissions in opposition to plaintiff's motion failed to raise a material triable issue of fact (see CPLR 3212[b] ; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).
Judges PIGOTT, RIVERA, ABDUS–SALAAM, STEIN, FAHEY and GARCIA concur. Chief Judge DiFIORE took no part.
Order modified, without costs, by granting plaintiff's motion for summary judgment dismissing the third affirmative defense and, as so modified, affirmed and certified question answered in the negative, in a memorandum.