Kellen v. Federal Paper Board Co.

44 A.D.2d 603 | N.Y. App. Div. | 1974

In an action inter alia for a declaratory judgment that plaintiff is entitled to the benefits of a pension plan, plaintiff appeals from an order of the Supreme Court, Kings County, dated June 12, 1972, which denied his motion for summary judgment on his first cause of action and granted defendant summary judgment dismissing the complaint. Order modified by striking therefrom the decretal provisions other than the one which denied plaintiff’s motion. As so modified, order affirmed, with $20 costs and disbursements to plaintiff. Upon the papers before Special Term, a triable issue exists at least with respect to whether plaintiff could have become a member of the pension plan on August 12, 1969. Gulotta, P. J., Hopkins and Shapiro, JJ., concur; Martuscello and Cohalan, JJ., dissent and vote to affirm.