| NY | Oct 24, 1978
OPINION OF THE COURT
Memorandum.
On plaintiffs appeal the order of the Appellate Division should be affirmed, with costs, on the memorandum at the Appellate Division.
On the appeal of American Totalisator Company, Inc., the order of the Appellate Division should be reversed, with costs, and summary judgment granted dismissing the complaint as to American Totalisator. In his motion papers plaintiff tendered no evidentiary proof in support of his conclusory assertions that American Totalisator dealt with him individually rather than only as an officer-employee representative of Taller & Cooper, that he individually otherwise had a legally cognizable interest in the alleged system as against American Totalisator, or indeed that his system was different from that disclosed in the 1964 patent which thereby became public knowledge. For plaintiff to succeed in opposing the motion for summary judgment he must come forward with a tender of admissible proof sufficient to require a trial of the material questions of fact on which he rests his claims. We agree with the dissenters at the Appellate Division that plaintiff failed to do this here.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.
On defendant American Totalisator Company, Inc.’s, appeal: Order reversed, with costs, and summary judgment granted dismissing the complaint as to American Totalisator Company, Inc. Question certified answered in the negative.