unit without prior consent and required her presence at the time of access, she refused to sign off
on the restoration agreement, she was difficult to communicate with and spent and inordinate
amount of time negotiating the costs of certain improvements she sought to make to the unit. The
defendant has provided a time line of the various stages it went through in an attempt to timely
complete the restoration of the unit.
On or about January 11, 2007, plaintiff was notified through her attorney that the unit was
ready for inspection and possession. Plaintiff maintains in her verified bill of particulars that she
inspected the unit in March 2007 and that the repairs were incomplete, including, inter
alia, "there was no kitchen." Defendant claims that approximately ten months later, plaintiff
requested a final walkthrough of the unit. Following the walkthrough, plaintiff submitted a
further list of items to restore/repair. The defendant maintains that it has exercised best efforts to
accommodate plaintiff's additional requests.
Discussion
On a motion for summary judgment, the proponent bears the initial burden of
setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment
in its favor, without the need for a trial. CPLR 3212; Winegrad v. NYU Medical Center,
64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Only
if it meets this burden, will it then shift to the party opposing summary judgment who must then
establish the existence of material issues of fact, through evidentiary proof in admissible form,
that would require a trial of this action. Zuckerman v. City of New York, supra . If the
proponent fails to make out its prima facie case for summary judgment, however, then its