
    New York State Teachers’ Retirement System, Respondent, v Joseph P. Huberty et al., Appellants.
   Appeal from an order of the Supreme Court at Special Term, entered October 8, 1975 in Albany County, which denied defendants’ motion for summary judgment dismissing the complaint. This case was previously before this court on an appeal from the denial of a motion to dismiss the complaint and the decision therein sets forth the relevant background to this appeal (New York State Teachers’ Retirement System v Huberty, 48 AD2d 741). Upon the present motion for summary judgment the defendant, Huberty, submitted an affidavit wherein he stated that there had been an occupancy of a portion of the plaintiff’s premises. The determination of Special Term that the evidence submitted by defendants does not completely establish a basis for dismissing the complaint should be affirmed. The defendants have not yet established that they are not liable for rents during some or all of the period referred to in the complaint and a piece-meal attack upon the first cause of action does not appear appropriate under the pleadings and evidentiary matter in this case. Order affirmed, without costs. Greenblott, J. P., Kane, Mahoney, Main and Herlihy, JJ., concur.  