Nissan Motor Acceptance Corp. v. Rosen

—In an action to recover damages for breach of contract, the defendant third-party plaintiff Shari Lyn Rosen appeals from so much of the order of the Supreme Court, Nassau County (Burke, J.), dated May 28, 1998, as denied her motion for summary judgment on the causes of action of the third-party complaint asserted against the third-party defendants Merchants & Business Men’s Mutual Insurance Company and Nu-Main of New York, Inc. Ordered that the order is affirmed insofar as appealed from, with costs. The defendant third-party plaintiff failed to establish her entitlement to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557; Perna v Ellner, 262 AD2d 620; Revelo v Weithorn, 253 AD2d 869). Therefore, her motion for summary judgment was properly denied, regardless of the sufficiency of the respondents’ opposing papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Mangano, P. J., Altman, Schmidt and Smith, JJ., concur.