Contracts · MBE-tested
Pharmhealth Infusion, Inc., Respondent-Appellant, v. Rohm Services Corp. et al., Appellants-Respondents, et al., Defendant
249 A.D.2d 950671 N.Y.S.2d 364·New York Supreme Court, Appellate Division·1998·NY
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Opinion
Pharmhealth Infusion, Inc., Respondent-Appellant, v Rohm Services Corp. et al., Appellants-Respondents, et al., Defendant.
(Appeal No. 1.)
[671 NYS2d 364]
[MAJORITY]
—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion to dismiss the fourth and fifth causes of action of the complaint. “[G]iven their most favorable intendment” (Arrington v New York Times Co., 55 NY2d 433, 442, rearg denied and dismissed 57 NY2d 669, 674, cert denied 459 US 1146), the allegations contained therein, supplemented by plaintiffs additional submissions (see, Rovello v Orofino Realty Co., 40 NY2d 633), establish a prima facie case of breach of contract. Additionally, the court properly denied plaintiffs cross motion for partial summary judgment as premature because issue was not yet joined (see, CPLR 3212 [a]). (Appeals from Order of Supreme Court, Monroe County, Stander, J.— Summary Judgment.) Present — Lawton, J. P., Hayes, Callahan and Balio, JJ.