
    Eugene Gershon, Appellant, v. Tobacco Brokers, Inc., Respondent.
   Order, Supreme Court, New York County, entered on August 1, 1974, denying plaintiff’s motion for summary judgment made pursuant to CPLR 3213, uanimously reversed, on the law, and motion granted. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The check executed and delivered to plaintiff was a “non-refundable deposit” except if there was a “wilful default” by the plaintiff. Defendant does not claim any such default. The attorney’s short affidavit submitted in opposition to plaintiff’s motion is of no value whatsoever and alleges nothing even slightly indicative of a defense to the action. The existence of another action, brought by plaintiff against the sole shareholder, officer and director of the defendant herein for breach of contract, is not a bar to 'an award of summary judgment in this action. Settle order on notice. Concur — Markewich, J. P., Murphy, Capozzoli, Lane and Nunez, JJ.  