Parry v. Thermasol, Ltd.

Order, entered December 14, 1967, denying motion by defendant to dismiss certain causes of action and granting the cross motion by plaintiff to dismiss certain affirmative defenses, unanimously modified, on the law, without costs or disbursements, to the extent of granting defendant’s motion for summary judgment on the fourth cause of action, and otherwise affirmed. The said cause of action relates to the period 1962 to 1963. ‘ Therein plaintiff seeks a 10% overage on the allegation that defendant’s sales exceeded $190,000. Defendant alleges, and the examination before trial of defendant establishes, that the sales during said period did not exceed $190,000. Plaintiff has placed the cause on the Trial Calendar. Plaintiff therefore does not intend to pursue further pretrial examination. Nevertheless, plaintiff’s opposing affidavit fails to set forth evidentiary *939 matter to dispute defendant’s claim. It also appears that plaintiff was offered an opportunity to examine defendant’s books and that she has not availed herself of this opportunity to obtain the necessary evidence to refute defendant’s claim. Concur — Steuer, J. P., Tilzer, McGivern, Rabin and McNally, JJ.