Opinion
January 19, 1971
Order, Supreme Court, New York County, entered on April 28, 1970, insofar as it denied defendants-appellants' motion for summary judgment dismissing complaint, unanimously affirmed. Respondents shall recover of appellants $50 costs and disbursements of this appeal. The meagre and incomplete record does not even include a copy of the complaint sought to be dismissed. Our affirmance is based upon our understanding that Special Term merely held, and we agree, that "on this record it may not be held that plaintiff will be precluded by said prior order from introducing evidence at the trial sufficient to make a prima facie case." ( Jersey v. Glode Requa Coal Lbr. Co., 13 A.D.2d 507, 508.)
Concur — Stevens, P.J., Capozzoli, Markewich, Kupferman and Tilzer, JJ.