Marion Scott Real Estate, Inc. v. Riverbay Corp. ( 2019 )

Marion Scott Real Estate, Inc. v Riverbay Corp. (2019 NY Slip Op 05073)

Marion Scott Real Estate, Inc. v Riverbay Corp.

2019 NY Slip Op 05073

Decided on June 25, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 25, 2019
Renwick, J.P., Gische, Webber, Oing, JJ.

9702 653953/14

[*1]Marion Scott Real Estate, Inc., Plaintiff-Respondent,

v

Riverbay Corporation, Defendant-Appellant.

Spolzino, Smith, Buss & Jacobs, LLP, Yonkers (Jeffrey D. Buss of counsel), for appellant.

Redmond Law PLLC, New York (Jennifer Redmond and Steven E. Spada of counsel), for respondent.

Judgment, Supreme Court, New York County (Paul Wooten, J.), entered March 12, 2018, against defendant in plaintiff's favor, and bringing up for review an order (same court and Justice), entered June 27, 2016, which granted plaintiff's motion for partial summary judgment on its second cause of action for breach of contract, unanimously reversed, on the law, with costs, the judgment vacated, and the motion denied.

Summary judgment was not warranted on plaintiff's second cause of action for breach of contract, because the record, presently undeveloped by discovery, precludes a conclusion, as a matter of law, that plaintiff performed its obligations under parties' contract (see Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). In addition, defendant raises counterclaims which are "inextricably interwoven and inseparable" from plaintiff's second cause of action, and the present record does not permit resolution of whether plaintiff or defendant breached the parties agreement (see Boston Concessions Group v Criterion Ctr. Corp, 200 AD2d 543 [1st Dept 1994]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 25, 2019

CLERK