LIEBOWITZ v. KOLODNY

Reset A A Font size: Print

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

Estelle LIEBOWITZ, etc., appellant, v. Joseph KOLODNY, et al., respondents.

Decided: December 27, 2005

STEPHEN G. CRANE, J.P., DANIEL F. LUCIANO, PETER B. SKELOS, and ROBERT A. LIFSON, JJ. McDonough Marcus Cohn Tretter Heller & Kanca, LLP, New Rochelle, N.Y. (Eli S. Cohn of counsel), and Herbert Adler, White Plains, N.Y., for appellant (one brief filed). Richard N. Golden, Forest Hills, N.Y., for respondents.

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by her reply brief, from so much of an order of the Supreme Court, Westchester County (La Cava, J.), dated July 19, 2005, as denied that branch of her motion which was for summary judgment dismissing the counterclaims to the extent they sought interest paid to certain taxing authorities.

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

The plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law, justifying dismissal of the defendants' counterclaims to the extent the counterclaims sought interest paid to certain taxing authorities (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Jamie Towers Hous. Co. v. William B. Lucas, Inc., 296 A.D.2d 359, 745 N.Y.S.2d 532).   Accordingly, the Supreme Court correctly denied that branch of the plaintiff's motion which was for summary judgment dismissing those counterclaims, regardless of the sufficiency of the opposing papers (see O'Leary v. Bravo Hylan, LLC, 8 A.D.3d 542, 778 N.Y.S.2d 700).

Copied to clipboard