Opinion
December 22, 1960
Appeal from the Municipal Court of the City of New York, Borough of Queens, DANIEL E. FITZPATRICK, J.
Wilbur G. Silverman for appellant.
Philip Steinman for respondent.
The affidavits and other proof fail to establish any basis for liability upon the theory that defendant had breached a conditional sale agreement.
There is neither claim nor proof that defendant exercised the option to purchase contained in a separate and distinct instrument which was executed subsequent to the rental agreement for the equipment in question.
The order denying plaintiff's motion for summary judgment should be unanimously modified by directing summary judgment to be entered in favor of defendant, with leave, if plaintiff be so advised, to serve an amended complaint so as to plead any cause of action plaintiff may have against defendant. As so modified, order affirmed, without costs.
Concur — HART, BROWN and DALY, JJ.
Order modified, etc.