D'Onofrio v. D'Onofrio , 762 N.Y.S.2d 256 ( 2003 )

—In an action, inter alia, to recover damages for breach of contract, the defendant Vincent D’Onofrio appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Garry, J.), dated June 6, 2002, as denied those branches of his cross motion which were for summary judgment dismissing the complaint insofar as asserted against him individually and as executor of the estate of John D’Onofrio, or in the alternative, for leave to amend his answer.

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

The appellant failed to demonstrate his prima facie entitlement, individually or as executor of the estate of John D’Onofrio, to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court properly denied that branch of the appellant’s cross motion which was for summary judgment.

The appellant’s remaining contention is without merit. Florio, J.P., S. Miller, McGinity and Adams, JJ., concur.