Underwriters at Interest, as Subrogee of Jennifer Dale, Inc., Respondent, v. Abramson Bros., Inc., et al., Defendants, and Berkliff Core., Appellant

Underwriters at Interest, as Subrogee of Jennifer Dale, Inc., Respondent, v Abramson Bros., Inc., et al., Defendants, and Berkliff Core., Appellant. [647 NYS2d 470] [MAJORITY] Order, Supreme Court, New York County (Carol Huff, J.), entered on or about August 15, 1995, which denied defendant-appellant’s motion for summary judgment dismissing the complaint and cross-claims as against it, unanimously affirmed, without costs. The motion court properly found that defendant-appellant failed to establish a defense sufficient to warrant direction of judgment in its favor as a matter of law by tender of proof in admissible form (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). Issues of fact exist, which include whether defendant-appellant was the source of material causing blockage of the drain resulting in the leak. Concur—Milonas, J. P., Ellerin, Rubin, Ross and Nardelli, JJ.