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September's Food Systems, LLC v. WIH Hotels

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


May 11, 2010

SEPTEMBER'S FOOD SYSTEMS, LLC, ET AL., APPELLANTS,
v.
WIH HOTELS, LLC, ET AL., RESPONDENTS. (ACTION NO. 1)
SEPTEMBER'S FOOD SYSTEMS, LLC, ET AL., APPELLANTS,
v.
BRE/WELLESLEY PROPERTIES, LLC, RESPONDENT. (ACTION NO. 2)

In two related actions, inter alia, to recover damages for breach of contract, the plaintiffs in both actions appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated October 31, 2008, as, upon converting that branch of the defendants' motion in Action No. 1 which was pursuant to CPLR 3211(a)(3) to dismiss the complaint into one pursuant to CPLR 3212 for summary judgment dismissing the complaint, granted that branch of the motion, and granted that branch of the defendants' motion in Action No. 2 which was 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.

MARK C. DILLON, J.P., ANITA R. FLORIO, HOWARD MILLER and DANIEL D. ANGIOLILLO, JJ.

(Index Nos. 14159/08, 11594/06)

DECISION & ORDER

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

In response to the defendants' prima facie showing of their entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). Thus, the Supreme Court properly awarded summary judgment to the defendants dismissing the complaints in both actions.

DILLON, J.P., FLORIO, MILLER and ANGIOLILLO, JJ., concur.

20100511

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