Opinion
November 30, 1967
Order, entered June 19, 1967, unanimously reversed, on the law and on the facts, and in the exercise of discretion, with $50 costs and disbursements to appellants, and motion by plaintiff for summary judgment denied. Generally, a plaintiff, seeking summary judgment, may recover only on the basis of the cause of action as pleaded. (See Progressive Credit Union v. Mt. Vernon Wiping Cloth Corp., 5 A.D.2d 166; O'Connor-Sullivan v. Otto, 283 App. Div. 269, 271; Maxrice Realty Corp. v. B/G Sandwich Shops, 239 App. Div. 472.) Here, the plaintiff's allegations are that the defendants have breached their written agreement under which each of them promised to pay to plaintiff a proportionate share of the net loss of a certain corporation as determined by its accountants. But the plaintiff has failed to present satisfactory proof that, as alleged, the accountants did duly compute the net loss at the sum stated in the complaint or at any certain sum. The answers of the defendants deny the authenticity and completeness of the accountants' statement annexed to the complaint and the plaintiff has failed to come forward with a proper showing that there was a due determination by the accountants of the net loss. The balance sheet allegedly prepared by the accountants and annexed to the complaint is not attested in any way. Furthermore, the balance sheet is expressly stated to be subject to the comments contained in an annexed letter of transmittal which, however, is not submitted. The plaintiff has failed to furnish the defendants with a copy of the letter of transmittal and has refused to permit defendants to examine the books of the corporation. The plaintiff admits that there is a dispute with respect to the net loss of the corporation and that said loss will be the subject of proof. On the basis of the present record, the determination of the sums payable by the defendants, if any, will depend upon the resolution of many disputed issues of fact. The proofs should be fully developed on pretrial examinations. No purpose would be served by the granting of summary judgment as the proofs upon an assessment would almost be identical with the proofs required on a trial of the issues as presented by the pleadings. (See Schwartz v. New England Mut. Life Ins. Co., 20 A.D.2d 688.)
Concur — Botein, P.J., Eager, Tilzer, Rabin and McNally, JJ.