MPEG LA LLC v. Audiovox Electronics Corporation, appellant, et al., defendant. (2011)

Argued—April 29, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant Audiovox Electronics Corporation appeals from an order of the Supreme Court, Suffolk County (Pines, J.), dated January 5, 2010, which denied its motion for summary judgment dismissing the first and second causes of action.

ORDERED that the order is affirmed, with costs.

Under the circumstances of this case, the defendant Audiovox Electronics Corporation (hereinafter the defendant) failed to meet its prima facie burden of demonstrating its entitlement to judgment as a matter of law on the first and second causes of action, which allege breach of contract (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853;  McMahan v. McMahan, 66 AD3d 970, 970–971).   Since the defendant failed to meet its prima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the first and second causes of action.

MASTRO, J.P., HALL, LOTT and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court