`NYSCEF DOC. NO. 42
`.1
`
`INDEX NO. 706086/2016
`
`RECEIVED NYSCEF: 07/12/2018
`
`Short Form Order
`
`NEW YORK SUPREME COURT - QUEENS COUNTY
`
`Present: HONORABLE (cid:9)
`
`JANICE A. TAYLOR (cid:9)
`Justice
`
`IAS Part 15
`
`NORTH SHORE PLUMBING SUPPLY CO. INC.,
`
`Plaintiff(s),
`
`- and -
`
`EMPIRE STATE PLUMBING & HEATING CORP.,
`And JOSEPH LACERTOSA,
`
`Defendant (s) .
`
`Index No. :706086/16
`
`Motion Date:3/7/18
`
`Motion Cal. No.: 115
`
`Motion Seq. No: 1
`
`The following papers numbered 1 - 10 read on this motion by the
`plaintiff for an order granting summary judgment.
`
`Notice of Motion-Affirmation-Exhibits-Service (cid:9)
`Affirmation in Opposition-Exhibits-Service (cid:9)
`Reply Affidavit-Exhibits-Service (cid:9)
`
`Papers
`Numbered
`
` 1 - 4
` 5 - 7
` 8 - 10
`
`Upon the foregoing papers it is ORDERED that the motion is
`decided as follows:
`
`This is an action for breach of contract. In its complaint,
`plaintiff alleges that the defendant Empire State Plumbing &
`Heating Corp. ("Empire") (cid:9)
`contracted to pay for goods provided,
`that Empire failed to pay the amount due pursuant to the contract
`and that defendant Joseph Lacertosa ("Lacertosa") guaranteed the
`contract between the parties.
`
`This action was commenced on or about May 23, 2016 by the
`electronic filing of a summons and complaint. Plaintiff now moves,
`pursuant to CPLR §3212, for an order granting summary judgment. It
`is well-settled that the 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 eliminate any
`material issues of fact from the case. (See Zuckerman v. City of
`
`1 of 2
`
`
`
`FILED: QUEENS COUNTY CLERK 07/12/2018 09:27 AM
`NYSCEF DOC. NO. 42
`
`INDEX NO. 706086/2016
`
`RECEIVED NYSCEF: 07/12/2018
`
`New York, 49 N.Y.2d 557, 562 [1980]; Sillman v. Twentieth
`Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). Failure to make
`such a showing requires denial of the motion.
`
`CPLR §3212(b) requires that for a court to grant summary
`judgment the court must determine if the movant's papers justify
`holding as a matter of law, "that the cause of action or defense
`has no merit." The evidence submitted in support of the movant must
`be viewed in the light most favorable to the non-movant (see,
`Grivas v. Grivas, 113 A.D.2d 264, 269 [2d Dept. 1985]; Airco Alloys
`Division, Airco Inc. v. Niagara Mohawk Power Corp., 76 A.D.2d 68
`[4th Dept. 1980]; Parvi v. Kingston, 41 N.Y.2d 553, 557 [1977]).
`
`A review of the instant motion reveals that material issues of
`fact remain' as to the prospective liability of the defendants and
`the amount due to the plaintiff. In opposition to the instant
`motion, defendant Lacertosa submits his own affidavit wherein he
`states that he never signed a Guaranty with the plaintiff. Summary
`judgment shall be granted only when there are no issues of material
`fact and the evidence requires the court to direct judgment in
`favor of the movant as a matter of law (see, Friends of Animals,
`Inc., v. Associated Fur Mfrs., 46 N.Y.2d 1065 [1979]; Orwell Bldg.
`Corp. v. Bessaha, 5 A.D.3d 573 [2d Dept. 2003]). Accordingly, the
`instant application for summary judgment is hereby denied.
`
`Dated: July 5, 2018
`
`JANICE A. (cid:9)
`
`R, J.S.C.
`
`15 (cid:9)
`Part (cid:9)
`H : \Decisions (cid:9)
`Judgment\706086-16_northshoreplumbing_summaryjudgment_SF0.wpd
`
`
`
`-2018 2 0 1 8 \Summary
`
`FILED
`
`JUL 12 2018
`
`COUNTY CLERK
`QUEENS COUNTY
`
`2
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`2 of 2
`
`
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