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N. Picco & Sons Contracting Co., Inc. v. Board of Education of the Bronxville School

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 16, 2010

N. PICCO & SONS CONTRACTING CO., INC., RESPONDENT,
v.
BOARD OF EDUCATION OF THE BRONXVILLE SCHOOL, APPELLANT.

In an action, inter alia, to recover damages for breach of contract and wrongful termination of a construction contract, the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), dated January 12, 2009, which denied its motion for summary judgment dismissing the complaint.

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.

REINALDO E. RIVERA, J. P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, SHERI S. ROMAN, JJ.

(Index No. 7827/04)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Contrary to the defendant's contention, the plaintiff's agreement to assign, as collateral security, any payment received as a result of the subject litigation did not deprive the plaintiff of standing to maintain the subject action (see Agristor Leasing v Barlow, 180 AD2d 899, 901; Southern Assoc. v United Brands Co., 67 AD2d 199, 204; Fifty States Mgt. Corp. v Pioneer Auto Parks, 44 AD2d 887, 888). Accordingly, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, and the Supreme Court properly denied its motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

RIVERA, J. P., ANGIOLILLO, DICKERSON and ROMAN, JJ., concur.

20100316

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