230 Park Ave. Holdco, LLC v Kurzman Karelsen & Frank, LLP, 27 NY3d at 1110 (2016)

2016 NY Slip Op 04976 [27 NY3d 1109]
June 23, 2016
Court of Appeals

[*1]

In the Matter of 230 Park Avenue Holdco, LLC, Appellant,
v
Kurzman Karelsen & Frank, LLP, et al., Respondents.

Argued June 1, 2016; decided June 23, 2016

230 Park Ave. Holdco, LLC v Kurzman Karelsen & Frank, LLP, 124 AD3d 477, modified.

{**27 NY3d at 1110} OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by granting plaintiff’s motion for summary judgment dismissing defendants’ third affirmative defense, and, as so modified, affirmed and the certified question answered in the negative.

[*2] Plaintiff met its initial burden of demonstrating its entitlement to summary judgment dismissing defendants’ third affirmative defense alleging that plaintiff breached the stipulation between the parties (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendants’ submis{**27 NY3d at 1111}sions in opposition to plaintiff’s motion failed to raise a material triable issue of fact (see CPLR 3212 [b]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur; Chief Judge DiFiore taking no part.

Order modified, without costs, by granting plaintiff’s motion for summary judgment dismissing the third affirmative defense and, as so modified, affirmed and certified question answered in the negative, in a memorandum.