
    (March 21, 1988)
    Ira M. Bratt et al., Appellants, v Bank of New York, Respondent.
   In an action to recover damages for violation of General Business Law article 34, defamation and infliction of mental distress, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Coppola J.), dated July 10, 1987, which denied their motion for summary judgment.

Ordered that the order is affirmed, with costs.

The proponent of a motion for summary judgment is required to make out a prima facie showing of entitlement to judgment as a matter of law offering sufficient evidence to eliminate any material issues of fact from the case. The failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851; Fox v Wyeth Labs., 129 AD2d 611).

In the instant case, the plaintiffs have failed to demonstrate that they fully complied with General Business Law § 703 which is a prerequisite to imposing liability on the defendant in that they failed to show that they gave notice to the defendant in accordance with the statute. Moreover, the plaintiffs have failed to produce the bank statement containing the purported billing error. It is therefore impossible on this record to verify that a billing error did indeed occur. As a consequence, material issues of fact remain, and summary judgment was properly denied. Bracken, J. P., Weinstein,. Rubin and Sullivan, JJ., concur.  