Lynn M. Wood, etc., respondent, v. Capital One Financial Corp., et al., appellants.

Reset A A Font size: Print

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

Lynn M. Wood, etc., respondent, v. Capital One Financial Corp., et al., appellants.

2009–08116 (Index No. 6106/07)

Decided: March 29, 2011

PETER B. SKELOS, J.P. RUTH C. BALKIN RANDALL T. ENG LEONARD B. AUSTIN, JJ. Wickham, Bressler, Gordon & Geasa, P.C., Melville, N.Y. (Eric J. Bressler of counsel), for appellants. Bracken & Margolin, LLP, Islandia, N.Y. (Linda U. Margolin of counsel), for respondent.

Argued—March 2, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Suffolk County (Farneti, J.), entered July 17, 2009, which granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

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

The plaintiff brought this action seeking damages, among other things, for breach of contract in connection with a stock plan for which employees of North Fork Bank were eligible.   The defendants contended that the plaintiff was not an “employee” within the meaning of the stock plan on the date her rights under the stock plan vested.   Before discovery, the Supreme Court granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

The Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.   After the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853;  Zuckerman v. City of New York, 49 N.Y.2d 557), the defendants failed to raise a triable issue of fact in opposition (see Farrell Bldg. Co., Inc. v. Shinnecock Elec. Inc., 71 AD3d 821;  Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612, 613).   Moreover, the defendants failed to establish that the motion should have been denied pending discovery.   The defendants failed to demonstrate that further discovery would lead to additional relevant evidence (see CPLR 3212 [f];  Lambert v. Bracco, 18 AD3d 619, 620).   The defendants' remaining contention, which relates to the third cause of action, is raised for the first time on appeal, and thus we decline to consider it (see Wexelbaum v. Jean, 80 AD3d 756;  cf.  Misicki v. Caradonna, 12 NY3d 511, 519;  Matter of State Farm Mut. Auto. Ins. Co. v Olsen, 22 AD3d 673, 674).

SKELOS, J.P., BALKIN, ENG and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

Copied to clipboard