Opinion
No. 922.
June 25, 2009.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered December 27, 2007, which, insofar as appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing plaintiffs last remaining cause of action for breach of contract, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.
Sullivan Gardner P.C., New York (Brian Gardner of counsel), for appellant.
Vincent J. Torna, New York, for respondent.
Before: Mazzarelli, J.P., Andrias, Nardelli, DeGrasse and Abdus-Salaam, JJ.
The court erred in finding that, contrary to its claim of underpayment on a total of 13 jobs, plaintiff had in fact been overpaid, based on its review of change orders in only 10 of those jobs. The grant of summary judgment to defendant was error inasmuch as the documentation it provided failed to demonstrate that it had made full payment to plaintiff and that no issues of fact remained. Defendant "cannot obtain summary judgment by pointing to gaps in plaintiff['s] proof ( Torres v Industrial Container, 305 AD2d 136). Accordingly, defendant's failure to make a prima facie showing required the denial of its motion, regardless of the claimed insufficiency of plaintiffs opposition ( see Winegrad v New York Univ. Med. Ctr, 64 NY2d 851, 853).