Kleban & Samor, P. C. v. County of Nassau ( 1998 )

—In an action to recover damages for breach of contract, (1) the defendant appeals from an order of the Supreme Court, Nassau County (Levitt, J.), entered May 23, 1997, which denied its motion for summary judgment dismissing the complaint and a stay of the impending trial and directed the parties to proceed to trial, and (2) the plaintiffs cross-appeal from an order of the same court, entered September 18, 1997, which denied their motion, inter alia, to vacate so much of the order entered May 23, 1997, as provided the basis for an automatic stay.

Ordered that the cross appeal is dismissed as academic; and it is further,

Ordered that the order entered May 23, 1997, is affirmed; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The Supreme Court properly denied the defendant’s motion for summary judgment as the defendant failed to establish its prima facie entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557). Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.