Kraham Leasing Corp. v. Kent Arms Co.

In an action on a contract, defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County, dated January 2, 1975, as (1) denied its motion for summary judgment and (2) granted plaintiff’s motion for leave to serve a supplemental complaint alleging a second cause of action. Order modified by deleting the fourth decretal paragraph thereof and substituting therefor a provision granting summary judgment to defendant as to the first cause of action pleaded in the supplemental complaint; and action severed so as to permit plaintiff to proceed separately on the second cause of action alleged in the supplemental amended complaint. As so modified, order affirmed insofar as appealed from, with $20 costs and disbursements to defendant. There is no triable issue of fact concerning the first cause of action asserted in the supplemental complaint since plaintiff unconditionally waived its right to a commission in the event the sale was not consummated (Wenger v Lefrak, 279 App Div 993, affd 305 NY 656). Hopkins, Acting P. J., Martuscello, Christ, Munder and Shapiro, JJ., concur.