Sazer v. Marino

—In an action, inter alia, to recover damages for breach of warranty of habitability, the defendant *538appeals, as limited, by her brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), dated October 5, 1999, as denied that branch of her motion which was for summary judgment dismissing the complaint, denied that branch of her motion that was for summary judgment on her second, third, and fourth counterclaims, and granted the plaintiffs cross motion, inter alia, to dismiss her second, third, and fourth counterclaims.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, she did not establish a prima facie case for summary judgment dismissing the complaint. There are triable issues of fact concerning whether the warranty of habitability was breached (see, Alvarez v Prospect Hosp., 68 NY2d 320; Frank Corp. v Federal Ins. Co., 70 NY2d 966).

Moreover, since the appellant moved for summary judgment before the respondents had an opportunity to depose her, summary judgment dismissing the complaint would be premature at this point (see, CPLR 3212 [f]; Hoxha v City of New York, 265 AD2d 379; Sazer v Marino, 266 AD2d 448).

The appellant’s remaining contentions are without merit. O’Brien, J. P., Goldstein, McGinity and H. Miller, JJ., concur.