Silverite Construction Co. v. Town of North Hempstead , 644 N.Y.S.2d 565 ( 1996 )

—In an action to recover damages for breach of a construction contract, the defendant appeals from a judgment of the Supreme Court, Nassau County (Robbins, J.), dated October 4, 1994, which, upon a prior order of the same court, dated August 10, 1994, granting the plaintiff’s motion for summary judgment, is in favor of the plaintiff and against the defendant in the sum of $2,394,358.29.

Ordered that the judgment is reversed, on the law, with costs, the plaintiff’s motion for summary judgment is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

By order dated January 19, 1993, this Court reversed a judgment of the Supreme Court, Nassau County, which, upon a prior order granting the plaintiff’s motion for summary judgment as to liability and after a nonjury trial as to damages, was in favor of the plaintiff, and remitted the matter to the Supreme Court for the completion of discovery and a new trial as to liability and damages {see, Silverite Constr. Co. v Town of N. Hempstead, 189 AD2d 811). The parties then conducted discovery and the plaintiff again moved for summary judgment. The renewed motion for summary judgment was granted. We reverse.

The proof obtained during discovery did not resolve or eliminate the factual issues raised in the plaintiff's prior motion, and instead confirmed the existence of issues of fact that require a trial.

Contrary to the Supreme Court’s conclusion, the attorney’s affirmation submitted by the defendant in opposition to the motion properly placed before the court evidence in admissible form since it was accompanied by documentary evidence and deposition testimony (see, Olan v Farrell Lines, 64 NY2d 1092; Zuckerman v City of New York, 49 NY2d 557). O’Brien, J. P., Sullivan, Florio and McGinity, JJ., concur.