Opinion
Submitted January 11, 2001
February 13, 2001.
In an action, inter alia, to recover damages for breach of warranty of habitability, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), dated October 5, 1999, as denied that branch of her motion which was for summary judgment dismissing the complaint, denied that branch of her motion that was for summary judgment on her second, third, and fourth counterclaims, and granted the plaintiff's cross motion, inter alia, to dismiss her second, third, and fourth counterclaims.
Vera Gretchyn Marino, Bayside, N.Y., appellant pro se.
Daniel S. Komansky, Huntington, N.Y., for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the appellant's contention, she did not establish a prima facie case for summary judgment dismissing the complaint. There are triable issues of fact concerning whether the warranty of habitability was breached (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966).
Moreover, since the appellant moved for summary judgment before the respondents had an opportunity to depose her, summary judgment dismissing the complaint would be premature at this point (see, CPLR 321 2[f]; Hoxha v. City of New York, 265 A.D.2d 379; Sazer v. Marino, 266 A.D.2d 448).
The appellant's remaining contentions are without merit.