The Appellate Division unanimously affirmed the Order which denied plaintiffs' motion for summary judgment on their claims against defendants and granted defendants' cross motion for summary judgment dismissing the complaint. Defendants demonstrated by admissible evidence that plaintiffs received payments for services performed on a construction project in excess of the total amount they had invoiced, thereby shifting the burden to plaintiffs to present opposing evidence in admissible form sufficient to demonstrate the existence of a triable issue of fact. Plaintiffs' assertion that some of the payments they received were for services provided on a different project was supported only by an attorney's affirmation, which was insufficient to establish an issue of fact. Addordigly, the motion court properly concluded that defendants established their entitlement to summary judgment dismissing the complaint.
G Bldrs. LLC v. Bondex Ins. Co., NY Slip Op 02101
