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Yellowbook, Inc. v. Bonfiglio & Asterita, LLC

Supreme Court of New York, Second Department

October 30, 2013

Yellowbook, Inc., etc., respondent,
v.
Bonfiglio & Asterita, LLC, et al., appellants. Index No. 600606/11

Bonfiglio & Asterita, LLC, Staten Island, N.Y. (Kevin Denaro of counsel), appellant pro se and for appellants Thomas J. Bonfiglio and Bonfiglio Group, LLC.

Smith Carroad Levy & Wan, P.C., Commack, N.Y. (Timothy Wan of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 27, 2012, which granted the plaintiff's motion for summary judgment on the complaint and denied their cross motion to compel discovery.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint. The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the subject contracts, sample advertisements, and proof of the defendants' failure to submit payment in the required amount (see CPLR 3212[b]). In opposition, the defendants failed to raise a triable issue of fact (see Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 A.D.3d 122, 127; see also Dunkin' Donuts of Am. v Liberatore, 138 A.D.2d 559, 560). Moreover, the defendants could not avoid summary judgment based on their claimed need for discovery, as they did not offer an evidentiary basis to suggest that discovery might lead to relevant evidence or that facts essential to opposing the motion were exclusively within the plaintiff's knowledge and control (see CPLR 3212[f]; Seidman v Industrial Recycling Props., Inc., 106 A.D.3d 983, 985).

The defendants' remaining contention is without merit.

MASTRO, J.P., LEVENTHAL, LOTT and ROMAN, JJ., concur.


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