Volis v. 801 Seventh Avenue, Inc.

—In an action to recover damages for personal injuries, etc., the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Pincus, J.), dated March 7, 2001, as denied that branch of its motion which was for summary judgment dismissing the breach of contract cause of action asserted against it by the defendant third-party plaintiff Structure Tone, Inc.

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

The appellant failed to meet its burden of submitting sufficient evidence in admissible form demonstrating its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557). Further, there are issues of fact regarding the applicable contractual provisions in this case. Feuerstein, J.P., Goldstein, McGinity and Crane, JJ., concur.