
    Daniel M. Vermut, Appellant, v R & M Liquors, Inc., et al., Defendants, and Irving Schlusselberg, Respondent.
    Argued April 28, 1980;
    decided May 29, 1980
    
      APPEARANCES OF COUNSEL
    
      Mark E. Spund and Sondra I. Harris for appellant.
    
      Richard C. Agins for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

We agree with the Appellate Division that plaintiff has failed to show facts sufficient to require a trial of any issue of fact. He has tendered no evidentiary proof in admissible form adequate for that purpose and demonstrated no acceptable excuse for his failure to do so. To the extent that he now seeks, to reverse the grant of summary judgment against him based on his assertion that the facts of the alleged fraud were exclusively in the possession of the defendant attorney, it suffices to observe that nowhere in his papers submitted in opposition to the motion for summary judgment did he advance this assertion, nor did he oppose the motion for summary judgment on this ground or apply for a continuance to permit disclosure to be had.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.  