Opinion
November 9, 1970
In an action to recover for extra work allegedly performed by plaintiff upon a construction subcontract, defendant appeals from an order of the Supreme Court, Queens County, entered June 8, 1970, which denied its motion for summary judgment. Order reversed, on the law, with $10 costs and disbursements, and motion granted. It is a settled principle that a defendant's motion for summary judgment, when supported by affidavits or other proof evidencing a sufficient defense and the absence of merit in the plaintiff's cause of action, will be granted where the plaintiff fails to submit any opposing papers ( Pribyl v. Van Loan Co., 261 App. Div. 503; White v. Merchants Despatch Transp. Co., 256 App. Div. 1044; Lederer v. Wise Shoe Co., 276 N.Y. 459, 464; see, also, 6 Carmody-Wait 2d, New York Practice, § 39:33). In our opinion, defendant's affidavit and documentary evidence established both the sufficiency of its defenses and the absence of merit in plaintiff's complaint. Therefore, it is our view that plaintiff's failure to submit any proof whatsoever warranted granting summary judgment to defendant. Rabin, Acting P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.