Opinion
9702 Index 653953/14
06-25-2019
MARION SCOTT REAL ESTATE, INC., Plaintiff–Respondent, v. RIVERBAY CORPORATION, Defendant–Appellant.
Spolzino, Smith, Buss & Jacobs, LLP, Yonkers (Jeffrey D. Buss of counsel, Yonkers), for appellant. Redmond Law PLLC, New York (Jennifer Redmond and Steven E. Spada of counsel), for respondent.
Spolzino, Smith, Buss & Jacobs, LLP, Yonkers (Jeffrey D. Buss of counsel, Yonkers), for appellant.
Redmond Law PLLC, New York (Jennifer Redmond and Steven E. Spada of counsel), for respondent.
Renwick, J.P., Gische, Webber, Oing, JJ.
Summary judgment was not warranted on plaintiff's second cause of action for breach of contract, because the record, presently undeveloped by discovery, precludes a conclusion, as a matter of law, that plaintiff performed its obligations under parties' contract (see Harris v. Seward Park Hous. Corp. , 79 A.D.3d 425, 426, 913 N.Y.S.2d 161 [1st Dept. 2010] ). In addition, defendant raises counterclaims which are "inextricably interwoven and inseparable" from plaintiff's second cause of action, and the present record does not permit resolution of whether plaintiff or defendant breached the parties agreement (see Boston Concessions Group v. Criterion Ctr. Corp, 200 A.D.2d 543, 606 N.Y.S.2d 696 [1st Dept. 1994] ).