Ionian Construction, Inc., et al., Appellants, v. Morgran Stiftung et al., Respondents

Ionian Construction, Inc., et al., Appellants, v Morgran Stiftung et al., Respondents. [610 NYS2d 825] [MAJORITY] —In an action to recover damages resulting from the wrongful filing of a notice of pendency, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 22, 1992, which granted the defendants’ motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. It is well settled that the summary judgment movant must establish his or her defense or cause of action sufficiently to warrant granting summary judgment in his or her favor. The party opposing the motion must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact (see, Frank Corp. v Federal Ins. Co., 70 NY2d 966). Further, to award summary judgment, it must clearly appear that no material triable issue of fact is presented (see, Daliendo v Johnson, 147 AD2d 312, 317). Contrary to the plaintiffs’ contention, we find that the defendants properly filed a notice of pendency to protect their interest in the subject property (see, 5303 Realty Corp. v O & Y Equity Co., 64 NY2d 313, 322; see also, Doar v Kozick, 87 AD2d 603, 604). Accordingly, the court correctly determined that no material triable issue of fact was presented and the award of summary judgment was properly made. Thompson, J. P., Santucci, Krausman and Florio, JJ., concur.