I would affirm.
This is a reasonable claim with none of the failings set forth in the statement of the Law Revision Commission contained in the majority opinion. There is no reason to take the matter from a jury in deciding what is a “significant interest in an enterprise”. (Cf. Dura v Walker, *370Hart & Co., 27 NY2d 346; Holender v Cammann Prods., 78 AD2d 233.)
The majority glosses over the fact that the defendant itself represented to the Securities & Exchange Commission and in its annual report to stockholders that the stock purchased was “an investment”.
We have previously held, and Special Term relied on our holding in Pass v B.S.F. Co. (40 AD2d 813-814), that: “Whether or not a block of stock less than 50% of the issued stock does in any particular instance represent actual control is a question of fact.”
Birns, Sullivan and Markewich, JJ., concur with Silverman, J.; Kupferman, J. P., dissents in an opinion.
Order, Supreme Court, New York County, entered on May 5, 1980, reversed, on the law, defendant’s motion for summary judgment dismissing the complaint is granted, and judgment is directed dismissing the complaint, on the ground of the Statute of Frauds (General Obligations Law, § 5-701, subd a, par 10). Appellant shall recover of respondent $75 costs and disbursements of this appeal.