Advertising To Women, Inc. v. Kaufman

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered June 21, 1989, which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel plaintiff’s compliance with a prior discovery request, is unanimously affirmed, with costs. This is an action by plaintiff tenant for breach of a lease agreement alleging overcharging and overpayment for electrical charges. Defendant’s opposing papers set forth the relevant lease provisions allegedly justifying the additional electrical charges. Such factors as increased usage, the extension of office hours to weekends, and overtime have yet to be determined. Thus, plaintiff failed to tender sufficient evidence to eliminate any material issue of fact and the motion for summary judgment was properly denied. (Matter of Universal Underwriters Group [Zeitlin], 157 AD2d 544 [1st Dept 1990]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985].) Concur—Sullivan, J. P., Rosenberger, Asch, Ellerin and Smith, JJ.