I dissent only insofar as this court would affirm the granting of plaintiff’s motion for summary judgment on the first cause of action with the direction of an assessment of damages. In my opinion the plaintiff has not presented facts and details sufficient to establish prima facie a right, of recovery upon such cause of action. In any event, it appears that there are triable issues with respect to plaintiff’s *104right of recovery thereunder. Accordingly, the order appealed from should be modified to delete the provisions therein granting plaintiff’s motion for summary judgment on the first cause of action and plaintiff’s motion therefor denied.