CONGREGATION YETEV LEV SATMAR INC v. 26 ADAR CORP (2002)

In an action pursuant to RPAPL article 15 to compel the determination of a claim to real property, the defendants 26 Adar N.B. Corp. and Nachman Brach appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jones, J.), dated August 27, 2001, as granted that branch of the plaintiffs' cross motion which was for partial summary judgment dismissing the counterclaim for use and occupancy of the residential portion of the property.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the cross motion which was for partial summary judgment dismissing the defendants' counterclaim for use and occupancy of the residential portion of the property is denied, and that counterclaim is reinstated.

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Here, the plaintiffs failed to demonstrate the absence of any triable issue of fact with respect to the defendants' counterclaim for damages for the use and occupancy of the residential portion of the subject property.   Accordingly, the Supreme Court erred in granting that branch of the plaintiffs' motion which was for partial summary judgment dismissing that counterclaim.

The parties' remaining contentions are either unpreserved for appellate review or without merit.