I find nothing of substance in the plaintiff’s defense to this motion by the defendant to induce me to conclude the plaintiff’s position is clearly sham and insufficient as a matter of law. The plaintiff herein had just been awarded priority of examination. Instead of complying and going ahead with the examinations, which the defendant had sought, the defendant counterstruck with this motion for summary judgment. I believe the motion was prematurely brought and that Special Term was correct in denying it.
On the appeal papers, Macchia is the director of real estate of the Allied- Chemical Corporation, and ostensibly had authority to generate deals pertaining to realty, without the prior approval of Allied’s board of directors. And a $9,800,000 all-cash deal was a significant departure from previous discussions which came to naught. On these two salient facts, we have a fair question, which cannot be determined in this submission alone. For if true, plaintiff may very well be within Peace & Elliman v. Gladwin Realty Co. (216 App. Div. 421) and Westhill Exports v. Pope (12 N Y 2d 491) and he could recover. The majority action is a too precipitate rejection of the plaintiff’s complaint.
Eager, Nunez and Steuer, JJ., concur with Stevens, P. J.; McGivebn, J., dissents in opinion.
Order, Supreme Court, New York County entered on March 30, 1970, reversed, on the law; defendant’s motion for summary judgment dismissing the complaint granted. Appellant shall recover of respondent $50 costs and disbursements of this appeal.