Opinion
2013-02-13
L'AQUILA REALTY, LLC, plaintiff-respondent, v. JALYNG FOOD CORP., et al., defendants third-party plaintiffs-appellants; General Trading Co., Inc., third-party defendant-respondent.
Garcia & Kalicharan, P.C., New York, N.Y. (William A. Garcia of counsel), for defendants third-party plaintiffs-appellants. Adam Seiden, Mount Vernon, N.Y., for plaintiff-respondent.
Garcia & Kalicharan, P.C., New York, N.Y. (William A. Garcia of counsel), for defendants third-party plaintiffs-appellants. Adam Seiden, Mount Vernon, N.Y., for plaintiff-respondent.
Sanford B. Goldberg, New York, N.Y., for third-party defendant-respondent.
, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.
In an action, inter alia, to recover damages for breach of a lease, the defendants third-party plaintiffs, Jalyng Food Corp., Arcedo Valdez, and Luchy Fernandez, appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), entered October 13, 2011, as granted the plaintiff's motion for summary judgment on the complaint and denied their cross motion, in effect, for summary judgment dismissing the complaint and for summary judgment on the third-party complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's motion for summary judgment on the complaint and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff did not demonstrate its prima facie entitlement to judgment as a matter of law on its complaint, because it failed to submit the relevant lease between it and the defendants third-party plaintiffs ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;CPLR 3212[b] ). The plaintiff could not rely on evidence submitted for the first time in its reply papers in support of its motion ( see GJF Constr. Corp. v. Cosmopolitan Decorating Co., Inc., 35 A.D.3d 535, 535, 828 N.Y.S.2d 409;Voytek Tech. v. Rapid Access Consulting, 279 A.D.2d 470, 471, 719 N.Y.S.2d 112;see also Cotter v. Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 A.D.3d 524, 525, 947 N.Y.S.2d 608;Malanga v. Chamberlain, 71 A.D.3d 644, 646, 896 N.Y.S.2d 385;David v. Bryon, 56 A.D.3d 413, 414–415, 867 N.Y.S.2d 136;Barrera v. MTA Long Is. Bus, 52 A.D.3d 446, 447, 859 N.Y.S.2d 483;Rengifo v. City of New York, 7 A.D.3d 773, 773, 776 N.Y.S.2d 865). The plaintiff's failure to make a prima facie showing requires the denial of its motion, regardless of the sufficiency of the opposition papers ( see Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Consequently, the Supreme Court should have denied the plaintiff's motion for summary judgment on the complaint.
The defendants third-party plaintiffs failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint or for summary judgment on the third-party complaint ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Accordingly, the Supreme Court properly denied their cross motion in its entirety.
In light of the foregoing, we do not reach the parties' remaining contentions.