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SCHWARTZMAN v. WOLK

Appellate Term of the Supreme Court of New York, First Department
Dec 29, 2005
2005 N.Y. Slip Op. 52163 (N.Y. App. Term 2005)

Opinion

570233/04, 04-423.

Decided December 29, 2005.

Plaintiff appeals from an order of the Civil Court, New York County, entered January 30, 2004 (Donna G. Recant, J.), which denied his motion for summary judgment, denied without prejudice his alternative request for an order of preclusion, and granted defendant's cross motion to add a third counterclaim and exercise discovery priority.

Order entered January 30, 2004 (Donna G. Recant, J.) reversed, with $10 costs, and plaintiff's motion for summary judgment granted in the principal amount of $11,018.83. The Clerk is directed to enter judgment accordingly.

PRESENT: Suarez, P.J., Davis, Gangel-Jacob, JJ


This is an action to recover rent arrears and other charges under a sublease agreement between two attorneys for the rental of office space in plaintiff's professional suite. Plaintiff established entitlement to summary judgment through evidentiary proof of the unpaid rent and related charges, and of his mailing of a series of invoices to defendant over a 10-month period. Defendant failed to rebut that evidence and provided no proof in admissible form to support his counterclaims that sought unspecified damages for alleged overbilling under the sublease.

Where a moving party has demonstrated entitlement to summary judgment, the opposing party must present evidence sufficient to raise a genuine issue of fact ( see Smith v. Johnson Prods. Co., 95 AD2d 675, 676). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York, 49 NY2d 557, 562). Defendant does not deny that he failed to pay rent and related charges for the final month of the sublease term; instead, he relies on unsubstantiated and unsupported counterclaims seeking unspecified damages. In view of the fact that more than three years elapsed between defendant's departure from the office space and plaintiff's motion for summary judgment (much of that time attributable to defendant's requests for adjournments), defendant should have been able to demonstrate any defenses with specificity, assuming such defenses actually existed.

This constitutes the decision and order of the Court.


Summaries of

SCHWARTZMAN v. WOLK

Appellate Term of the Supreme Court of New York, First Department
Dec 29, 2005
2005 N.Y. Slip Op. 52163 (N.Y. App. Term 2005)
Case details for

SCHWARTZMAN v. WOLK

Case Details

Full title:FREDERICK SCHWARTZMAN, Plaintiff-Appellant, v. MICHAEL B. WOLK…

Court:Appellate Term of the Supreme Court of New York, First Department

Date published: Dec 29, 2005

Citations

2005 N.Y. Slip Op. 52163 (N.Y. App. Term 2005)
814 N.Y.S.2d 564