Abcon Associates, Inc., Appellant, v. Apollo Theatre Investor Group, Respondent

Abcon Associates, Inc., Appellant, v Apollo Theatre Investor Group, Respondent. [MAJORITY] Order, Supreme Court, New York County (Edward Greenfield, J.), entered on or about May 3, 1989, which denied plaintiffs motion, for summary judgment on the issue of the liability of defendant, Apollo Theatre Investor Group (ATIG), unanimously affirmed, without costs or disbursements. Summary judgment will be granted only where there is 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, 853.) In the instant case, there remains a triable issue of fact as to whether ATIG terminated its contract with Abcon for cause or without cause. Although ATIG did not give written notice of default to Abcon, this would not preclude it from claiming damages. (See, Zweig & Sons v Tuscarora Constr. Co., 50 AD2d 1069.) Concur—Sullivan, J. P., Carro, Milonas, Rosenberger and Ellerin, JJ.