FOOD SYSTEMS v. BRE/WELLESLEY

Ordered that the appeal from the order entered November 30, 2006, as modified by the order entered December 15, 2006, is dismissed as abandoned; and it is further,

Ordered that the order entered May 8, 2007 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the defendant. The Supreme Court properly denied that branch of the plaintiffs' cross motion which was for partial summary judgment on the complaint. The plaintiffs failed to tender sufficient evidence to eliminate all material issues of fact and, accordingly, did not demonstrate their entitlement to judgment as a matter of law ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852; Zuckerman v City of New York, 49 NY2d 557, 562).