Taub v. Balkany

In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals from an order of the Supreme Court, Kings County (Arniotes, J.), dated January 7, 2000, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The moving party on a motion for summary judgment must establish a prima facie case of its entitlement to judgment as a matter of law by tendering evidentiary proof in admissible form which demonstrates the absence of any triable issue of fact (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320 , 324; Zuckerman v City of New York, 49 NY2d 557 , 562). Here, the defendants, who moved for summary judgment dismissing the complaint on the ground that the plaintiff lacked standing to sue, failed to establish such a prima facie case. Therefore, the Supreme Court improperly granted the motion for summary judgment (see, Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 ).

We note that the plaintiff sufficiently stated a cause of action to recover damages for fraud (see, Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112 , 122; Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954 , 956). Ritter, J. P., Friedmann, Luciano and Smith, JJ., concur.