G Bldrs., LLC v Bondex Ins. Co.
2021 NY Slip Op 02101 [193 AD3d 452]
April 6, 2021
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 2, 2021


[*1]
 G Builders, LLC, et al., Appellants,
v
Bondex Insurance Company et al., Respondents, et al., Defendant.

Porzio, Bromberg & Newman, P.C., New York (Carol A. Sigmond and Joshua M. Deal of counsel), for appellants.

Bittiger Elias & Triolo, P.C., New York (Jason L. Bittiger of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered January 10, 2020, which denied plaintiffs' motion for summary judgment on their claims against defendants and granted defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

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 (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). 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 (id.). As such, the motion court properly concluded that defendants established their entitlement to summary judgment dismissing the complaint. Concur—Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.