Opinion
November 15, 1991
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Doerr, J.P., Denman, Green, Balio and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and amended complaint dismissed. Memorandum: Supreme Court erred in denying defendant's motion for summary judgment dismissing the amended complaint asserting causes of action for breach of contract, conversion and fraudulent concealment. We conclude that defendant demonstrated entitlement to judgment in its favor as a matter of law by the tender of evidentiary proof in admissible form establishing that plaintiff was not the real party in interest because plaintiff made a complete assignment of its rights in the Perkin-Elmer computer (computer) and the related lease (see, McKinney Son v. Lake Placid 1980 Olympic Games, 61 N.Y.2d 836, 838; 2 Weinstein-Korn-Miller, N Y Civ Prac ¶ 1004.01) and the purported reassignment was invalid (see, Judiciary Law § 489). Plaintiff, on the other hand, failed to submit evidentiary proof in admissible form to show the existence of material issues of fact. Accordingly, defendant is entitled to summary judgment dismissing the breach of contract and conversion causes of action on the ground that plaintiff is not the real party in interest. Defendant is entitled to summary judgment dismissing plaintiff's cause of action for fraudulent concealment. Defendant, by the tender of evidentiary proof in admissible form, established its defense, that it was under no duty to disclose the location of the computer and, if it had such a duty, it had no knowledge that the computer would remain in the possession of Megaplex Networks, Inc. (see, 60 N.Y. Jur 2d, Fraud and Deceit, § 93; see also, Young v. Keith, 112 A.D.2d 625, 626-627), "sufficiently to warrant the court as a matter of law in directing judgment" in its favor (CPLR 3212 [b]). Plaintiff, however, failed to proffer "evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which [it] rests [its] claim" (Zuckerman v. City of New York, 49 N.Y.2d 557, 562).