Appeal by defendant from an order of the Civil Court, Queens County

(A. Gazzara, J.), entered February 10, 2003, which granted plaintiff's motion for summary judgment to the extent of awarding plaintiff summary judgment on the issue of liability and setting the matter down for an assessment of damages.

Order unanimously reversed without costs and plaintiff's motion for summary judgment denied.

In this action to recover an unpaid balance due under a motor vehicle lease agreement, plaintiff moved for summary judgment and demonstrated through exhibits and affidavits its prima facie entitlement to judgment on the issue of liability. Thus, the
burden shifted to defendant to produce evidentiary proof to establish the existence of an issue of fact as to liability (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). After reviewing defendant's opposition papers, we are of the opinion that triable issues of fact exist requiring a trial of this matter. Accordingly, the lower court improperly granted plaintiff's motion for summary judgment on the issue of liability.

Decision Date: March 31, 2004