Opinion
987 CA 19-01670
11-13-2020
ACCADIA SITE CONTRACTING, INC., Plaintiff-Appellant, v. TOWN OF ORCHARD PARK, Defendant-Respondent.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (ELIZABETH A. HOLMES OF COUNSEL), FOR PLAINTIFF-APPELLANT. LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (JAMES P. BLENK OF COUNSEL), FOR DEFENDANT-RESPONDENT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (ELIZABETH A. HOLMES OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (JAMES P. BLENK OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this action arising out of a dispute over the performance of a road reconstruction contract, plaintiff appeals from that part of an order that denied its motion for partial summary judgment on its third cause of action, alleging breach of contract for nonpayment on work performed. We conclude that Supreme Court properly denied the motion inasmuch as plaintiff failed to "make a prima facie showing of entitlement to judgment as a matter of law [by] tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; see Breeze Natl. v. CATI, Inc. , 292 A.D.2d 272, 272-273, 738 N.Y.S.2d 851 [1st Dept. 2002] ). Plaintiff's "[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" ( Winegrad , 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).