PREMIER LINCOLN MERCURY INC v. ALSOL ENTERPRISES LTD (2004)

In an action, inter alia, for a judgment declaring the parties' rights and obligations under a lease, the plaintiff appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Kings County (Vaughan, J.), dated April 14, 2003, which, inter alia, denied that branch of its motion which was for summary judgment releasing money held in escrow, and granted the defendant's cross motion for leave to amend its answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 In support of its motion for summary judgment, the plaintiff failed to submit sufficient evidence to establish that it neither used nor occupied certain property owned by the defendant during the months of February, March, April, and May 2002 (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Therefore, that branch of the plaintiff's motion which was for summary judgment releasing money held in escrow for the payment of use and occupancy during those months was properly denied (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 Moreover, as there exists a triable issue of fact as to which party is entitled to the escrow funds, the defendant's cross motion for leave to amend its answer to include a counterclaim to recover these funds was not devoid of merit and, thus, was properly granted (see CPLR 3025[b];  Hall Signs v. Aries Striping, 236 A.D.2d 513, 654 N.Y.S.2d 621).

The plaintiff's remaining contentions are without merit.