
    (November 19, 1974)
    Nandor Seidenfeld, Respondent, v. Kobi Polyethylene Bag Mfg. Co., Inc., et al., Appellants, et al., Defendants.
   Order, Supreme Court, New York County, entered December 11, 1973, unanimously reversed, on the law, defendants-appellants’ motion for summary judgment dismissing the complaint granted, without prejudice as hereinafter set forth, and plaintiff-respondent’s motion to amend his complaint_denied. Appellants shall recover of respondent $60 costs and disbursements of this appeal. The complaint, said to be based on fraud, when put to the test of summary judgment, is not supported' by the requisite proofs. This would be so even if the complaint were to be regarded as one for breach of contract. It may be that plaintiff is in a position to supply the deficiencies in proof and, accordingly, this disposition is without prejudice to application at Special Term for leave to amend the complaint, accompanied by evidence by affidavit in support of the proposed amendment. (See Cushman é Wakefield v. John David, Inc., 25 A D 2d 133.) Concur — McGivern, P. J., Markewich, Nunez, Lupiano and Yesawich, JJ.  