Opinion
2011-12-27
BWAY LLC, Plaintiff–Appellant, v. WARMAN ENTERPRISES, Defendant–Respondent.
Claude Castro & Associates PLLC, New York (Claude Castro of counsel), for appellant. Moses & Singer LLP, New York (Henry J. Bergman of counsel), for respondent.
Claude Castro & Associates PLLC, New York (Claude Castro of counsel), for appellant. Moses & Singer LLP, New York (Henry J. Bergman of counsel), for respondent.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 13, 2010, dismissing the complaint, and bringing up for review orders, same court and Justice, entered September 21, 2010, which denied plaintiff's motion for partial summary judgment and granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the judgment vacated, and the complaint reinstated.
In this action arising from a failed contract for the sale of real property, plaintiff purchaser alleges that it was entitled to *806 cancel the contract based on a hazardous condition caused by defendant seller. Plaintiff claims that defendant removed underground oil tanks, after the execution of the contract, in violation of its contractual obligation to maintain the premises “as is” and in “their present condition.” On its motion, defendant submitted a contractor's report which found evidence of oil contamination and made remediation recommendations. Defendant's conclusory claim that it corrected the condition at a cost of approximately $5,000, is not supported by documentary evidence, lacks probative value, and is insufficient to establish entitlement to judgment as a matter of law. Similarly, plaintiff on the record failed to present a prima facie showing entitling it to summary judgment.