Cauthers v Brite Ideas, LLC

Cauthers v Brite Ideas, LLC 2007 NY Slip Op 05672 [41 AD3d 755] June 26, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Brian Cauthers et al., Respondents,
v
Brite Ideas, LLC, Appellant, et al., Defendant.

—[*1] Johnson & Foley, P.C., Montgomery, N.Y. (Kevin Foley of counsel), for appellant.

Jay B. Renfro, Ghent, N.Y., for respondents.

In an action, inter alia, to recover damages for breach of contract, the defendant Brite Ideas, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated August 8, 2006, as denied those branches of its cross motion which were, in effect, for summary judgment dismissing the second, third, and fourth causes of action insofar as asserted against it.

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

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The Supreme Court properly found that the appellant's proof, consisting solely of an attorney's affidavit, was insufficient to meet its initial burden (see Jeune v O.T. Trans Mix Corp., 29 AD3d 635, 636 [2006]; Stahl v Stralberg, 287 AD2d 613, 614 [2001]). Rivera, J.P., Goldstein, Skelos and Balkin, JJ., concur.