Appeal from an order of the District Court of Nassau County, First District (Erica L. Prager, J.), entered July 18, 2005. The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment.

Order, insofar as appealed from, reversed without costs and defendant's motion for summary judgment denied.

In this action to recover an unpaid balance of rent in the sum of $9,100, defendant moved for summary judgment dismissing the complaint and essentially demonstrated through an affidavit and exhibits, including his rent checks for the disputed amount, his entitlement to judgment. Thus, the burden shifted to plaintiff to produce evidentiary proof to establish the existence of an issue of fact as to payment (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Plaintiff offered documentary evidence in the form of a rent analysis, consisting of work sheets, which showed defendant's rent payments and a balance due. After reviewing plaintiff's opposition papers, we are of the opinion that a triable issue of fact exists requiring a trial of this matter. Accordingly, defendant's motion for summary judgment should have been denied.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: May 17, 2007