
    19 South Main Street Corp., Respondent, v. Rockland Secretarial School, Inc., Appellant.
   In consolidated actions: (a) by 19 South Main Street Corp. to recover rent allegedly due from Rockland Secretarial School, Ine. under a lease; and (b) by Rockland Secretarial School, Inc., for return of a deposit, paid to 19 South Main Street Corp. pursuant to the lease, on the ground that the lease, by its terms, has become null and void, the defendant Rockland Secretarial School, Ine., appeals: (1) from an order of the Supreme Court, Rockland County, entered November 30, 1964, which denied its motion for summary judgment and granted plaintiff’s cross motion for summary judgment; and (2) from the judgment entered December 23, 1964 pursuant to said order in favor of the plaintiff. Order modified: (1) by striking out its last three decretal paragraphs granting plaintiff’s motion for summary judgment and directing entry of judgment in its favor; and (2) by substituting therefor a provision denying plaintiff’s motion. As so modified, order affirmed, with $10 costs and disbursements to defendant, and judgment vacated. In our opinion, questions of fact as to the intention of the parties and their performance under the lease are presented which preclude the granting of summary judgment to either party. Although defendant appears to have a valid claim based on section 233 of the Real Property Law, it has not pleaded a cause of action on this theory and, hence, cannot have summary judgment thereon (Burgin v. Ryan, 238 App. Div. 122). Ughetta, Acting P. J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.  