CAB ASSOCIATES v. STATE (2005)

In a claim to recover damages for breach of contract, the defendant appeals from an order of the Court of Claims (Collins, J.), dated June 3, 2003, which denied its motion for summary judgment dismissing the third, fourth, fifth, sixth, seventh, and eighth claims and, in effect, struck its first and second affirmative defenses for failure to comply with the pleading requirements of CPLR 3015(a).

ORDERED that the order is modified, on the law, by deleting the provision thereof, in effect, dismissing the defendant's first and second affirmative defenses;  as so modified, the order is affirmed, without costs or disbursements.

 The claimant failed to allege compliance with the condition precedent contained in the parties' contract.   The defendant, in the first and second affirmative defenses asserted in its answer, denied such compliance with sufficient specificity and particularity to apprise the claimant of what it would have to establish at trial (see CPLR 3015[a];  Roel Partnership v. Amwest Sur. Ins. Co., 258 A.D.2d 780, 685 N.Y.S.2d 832;  CNY Mech. Assocs. v. Fidelity & Guar. Ins. Co., 212 A.D.2d 989, 624 N.Y.S.2d 700).   Therefore, the Court of Claims improperly, in effect, struck those affirmative defenses.

 However, the defendant's motion for summary judgment dismissing the third, fourth, fifth, sixth, seventh, and eighth claims was properly denied.   The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The defendant failed to establish its entitlement to judgment as a matter of law that the additional costs which are the subject of the claims were subject to the dispute resolution procedure contained in the parties' contract (cf. Rondout Elec. v. Monroe-Woodbury Cent. School Dist., 1 A.D.3d 423, 767 N.Y.S.2d 776;  Three Bros. Roofing Contrs. v. New York City Hous. Auth., 269 A.D.2d 523, 703 N.Y.S.2d 237).