FAC CONTINENTAL LLC PLAINTIFF RESPONDENT APPELLANT v. APPEAL NO (2010)

Supreme Court, Appellate Division, Fourth Department, New York.

FAC CONTINENTAL LLC, PLAINTIFF-RESPONDENT -APPELLANT, v. YICKJING567 LLC, DEFENDANT-APPELLANT -RESPONDENT. (APPEAL NO. 1.)

CA 10-00268

Decided: November 12, 2010

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.

DREW & DREW, LLP, BUFFALO (CAROLYN NUGENT OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT. LEWANDOWSKI & ASSOCIATES, WEST SENECA (LINDSAY M. SWENSEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered April 30, 2009 in a breach of contract action. The order denied the amended motion of plaintiff for summary judgment and granted in part and denied in part the cross motion of defendant for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the amended motion, and denying the cross motion in its entirety, and as modified the order is affirmed without costs.

Finally, we reject the contention of defendant in appeal No. 1 that, because it has not had the opportunity to conduct discovery, an award of summary judgment in favor of plaintiff is premature.

Patricia L. Morgan

Clerk of the Court

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