
    Curtis Katz, Respondent, v Napoleon B. Williams, Jr., Appellant.
   Judgment, Supreme Court, New York County (Bowman, J.), entered March 13, 1981, after Bench trial, which granted plaintiff-respondent physical possession of defendant-appellant’s apartment, awarded costs, and directed the Sheriff to deliver the apartment to plaintiff, unanimously reversed, on the law and the facts, with $75 costs and disbursements, and judgment granted declaring that defendant’s rights under the subscription agreement are still valid and that he is entitled to purchase the shares to the subject apartment. The factual background of this appeal is provided by this court’s memorandum at 72 AD2d 526, wherein we reversed the grant by Special Term of summary judgment to the defendant because of the existence of outstanding issues of fact. Those issues were resolved by the trial court in favor of plaintiff. However, examination of the record makes clear that plaintiff did not sustain his burden of proof. There is insufficient support in the record for the findings and conclusions of the trial court. The evidence did not make out default by defendant under the subscription agreement, or that a proper notice of default was sent to defendant (i.e., plaintiff did not prove fulfillment of the conditions set forth for said notice under the agreement) or that defendant waived his right to receive notice of default. The evidence did however establish that proper repairs were never made and that said repairs were substantial and were a prerequisite to payment. Judgment should therefore have been granted defendant, declaring his right to remain in possession and purchase the shares to the apartment. Settle order. Concur — Murphy, P. J., Kupferman, Ross, Carro and Milonas, JJ.  