Opinion
October 21, 1996.
In an action to recover damages for breach of contract, the defendants Long Beach Recycling Recovery Corp. and ERD Management Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), dated September 19, 1995, as granted summary judgment in favor of the plaintiff P.J.V. Transport against the defendant Long Beach Recycling and Recovery Corp. and denied that branch of the cross-motion of the defendant ERD Management Corp. which was for summary judgment dismissing the complaint insofar as asserted against it.
Before: Rosenblatt, J. P., Thompson, Santucci, Altman and Hart, JJ.
Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant ERD Management Corp., and substituting therefor provisions granting that branch of the cross motion, dismissing the complaint insofar as asserted against the defendant ERD Management Corp., and severing the action against the remaining defendants; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
On or about April 23, 1991, the plaintiff P.J.V. Transport, Inc. (hereinafter PJV) and the defendant Long Beach Recycling Recovery Corp. (hereinafter LBRRC) entered into a written agreement whereby PJV agreed to transport and dispose of solid waste generated at a recycling and incineration facility owned by LBRRC. The plaintiffs thereafter commenced this action against LBRRC as well as ERD Management Corp. (hereinafter ERD) to recover payments due for work performed pursuant to the agreement.
Inasmuch as PJV failed to raise a triable issue of fact ( see, CPLR 3212 [b]) as to whether ERD, upon, inter alia, taking control of the operation of the facility, assumed the debts or obligations of LBRRC, the Supreme Court erred in denying that branch of the cross motion of ERD which was for summary judgment dismissing the complaint insofar as asserted against it.
The appellants' remaining contentions are without merit.