Frommer v. Frommer

—In an action, inter alia, for an accounting, the defendant appeals from so much of an order of the Supreme Court, Kings County (Kramer, J.), entered November 12, 1993, as denied that branch of his cross motion which was for summary judgment.

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

The plaintiffs brought this action against the defendant seeking an accounting by him of transactions pertaining to their partnership in the management of a certain property. The defendant counterclaimed for a partition of the property and a similar accounting by the plaintiffs. Pursuant to court order, the property was sold at public auction and the parties thereafter submitted their respective accountings and their respective objections to the accountings. The plaintiffs sought a hearing regarding the accuracy of the defendant’s accounting, and the defendant cross-moved to amend his answer to assert the defense of the Statute of Limitations and for summary judgment. The Supreme Court denied the plaintiffs’ application for a hearing, granted that branch of the defendant’s cross motion which was to amend the answer, and denied that branch of the defendant’s motion which was for summary judgment, on the ground that there were issues of fact.

We agree that the defendant failed to proffer sufficient evidence demonstrating that no material issues of fact existed warranting judgment in his favor (see, Alvarez v Prospect Hosp., 68 NY2d 320). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Museums at Stony Brook v Village of Patchogue Fire Dept., 146 AD2d 572; Grimaldi v Pagan, 135 AD2d 496). Rosenblatt, J. P., Lawrence, Joy and Krausman, JJ., concur.