G Bldrs., LLC v Bondex Ins. Co.

G Bldrs., LLC v Bondex Ins. Co. 2021 NY Slip Op 02101 Decided on April 06, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 06, 2021
Before: Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.
Index No. 655962/17 Appeal No. 13532 Case No. 2020-03161

[*1]G Builders, LLC, et al., Plaintiffs-Appellants,

v

Bondex Insurance Company, et al., Defendants-Respondents, Samuel N. Prisco, Defendant.

Porzio, Bromberg & Newman, P.C., New York (Carol A. Sigmond and Joshua M. Deal of counsel), for appellants.

Bittiger Elias & Triolo, P.C., New York (Jason L. Bittiger of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered January 10, 2020, which denied plaintiffs' motion for summary judgment on their claims against defendants and granted defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants demonstrated by admissible evidence that plaintiffs received payments for services performed on a construction project in excess of the total amount they had invoiced, thereby shifting the burden to plaintiffs to present opposing evidence in admissible form sufficient to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York , 49 NY2d 557, 560 [1980]). Plaintiffs' assertion that some of the payments they received were for services provided on a different project was supported only by an attorney's affirmation, which was insufficient to establish an issue of fact (id. ). As such, the motion court properly concluded that defendants established their entitlement to summary judgment dismissing the complaint. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 6, 2021