inadmissible based on attorney-client privilege, or (iii) unnecessary because Bergman's did not
play an active role in the "contract negotiations." Bergman also submits his own affidavit
expressing similar arguments.
In sur-reply, with respect to the issue of good faith, the Sellers rely on a number of
e-mails, including E-mails #1, #2, and #3 (the "sur-reply e-mails"), which they allege reflect the
Colacinos' impermissible dilatory actions. With respect to the cross motion, the Sellers argue that
the replies show that Bergman had one-on-one conversations with Ebert with respect to the
contract renegotiations and that they are entitled to cross examine him.
Discussion
On a motion for summary judgment, the proponent "must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate
any material issues of fact from the case " Winegrad v. New York Univ. Med. Center, 64
NY2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts to
the party opposing the motion to produce evidentiary proof in admissible form to establish that
material issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 NY2d
320, 324 (1986).
The threshold issue here is whether the Colacinos were entitled to terminate the
Agreement on October 15, 2009. Pursuant to Paragraph 6.3 of the Contract, "[i]f the Corporation
has not made a decision on or before the Scheduled Closing Date, the Closing shall be adjourned
for 30 business days [until the Adjourned Closing Date, October 15, 2009] ." Furthermore,
Paragraph 6.3 of the Contract provides that "[i]f [the Corporation's] consent [to the Colacinos'
purchase of the Apartment] is not given by the [Adjourned Closing Date], either Party may