DeMeo v. Grimaldi , 719 N.Y.S.2d 595 ( 2001 )

— In an action, inter alia, for the partition of real property, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Gerard, J.), dated December 20, 1999, as denied his motion for summary judgment on his counterclaims.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendant’s motion for summary judgment on his counterclaims is granted, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith.

The defendant made a prima facie showing that he was entitled to enforce the partnership agreement entered into by the parties. The plaintiff’s opposition papers failed to demonstrate, by evidentiary proof, the existence of a material issue of fact requiring a trial. Accordingly, the defendant’s motion for summary judgment on his counterclaims should have been granted (see, Alvarez v Prospect Hosp., 68 NY2d 320).

However, since the defendant is also seeking an attorney’s fee for breach of the partnership agreement, the matter is remitted to the Supreme Court for a hearing on that issue. Bracken, Acting P. J., O’Brien, Florio and Schmidt, JJ., concur.