Opinion
April 29, 1998
Appeals from Order of Supreme Court, Monroe County, Stander, J. — Summary Judgment.
Present — Lawton, J.P., Hayes, Callahan and Balio, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants' motion to dismiss the fourth and fifth causes of action of the complaint. "[G]iven their most favorable intendment" (Arrington v. New York Times Co., 55 N.Y.2d 433, 442, rearg denied and dismissed 57 N.Y.2d 669, 674, cert denied 459 U.S. 1146), the allegations contained therein, supplemented by plaintiff's additional submissions (see, Rovello v. Orofino Realty Co., 40 N.Y.2d 633), establish a prima facie case of breach of contract. Additionally, the court properly denied plaintiff's cross motion for partial summary judgment as premature because issue was not yet joined (see, CPLR 3212 [a]).