Simon v. Siegel

—Judgment, Supreme Court, Bronx County (Bertram Katz, J.), entered December 6, 1994, dismissing the complaint at the close of plaintiffs case pursuant to CPLR 4401, unanimously affirmed, without costs or disbursements.

The trial court properly granted defendant’s motion to dismiss the complaint at the close of the plaintiffs case for failure to establish a prima facie case. With respect to the breach of contract cause of action based on provisions requiring the surviving shareholder to purchase the shares of a deceased shareholder — the only cause of action whose dismissal is challenged on this appeal — evidence was lacking, inter alia, that defendant had failed to purchase the shares owned by plaintiffs decedent at the time of his death. Contrary to plaintiff s contention, the testimony of Dr. N. Tully Simon, decedent’s father, indicates merely that he did not know whether his son’s interest was sold back to the corporation. Concur — Murphy, P. J., Sullivan, Rubin, Ross and Tom, JJ.