
    Provident Life and Casualty Insurance Company, Respondent, v Scott A. Brittenham, Appellant.
    [769 NYS2d 735]
   In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to pay the defendant under the terms of certain disability insurance policies, the defendant appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated May 13, 2002, as denied that branch of his motion which was for summary judgment on the issue of liability on his counterclaims seeking benefits under the subject policies.

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

The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). Accordingly, the Supreme Court correctly denied the defendant’s motion for summary judgment on the issue of liability on his counterclaims seeking benefits under the subject policies.

The plaintiffs contention that the Supreme Court erred in its construction of certain terms in the subject policies is not properly before this Court. Smith, J.P., Luciano, H. Miller and Townes, JJ., concur.  