Stern v. Folgeman (248 A.D.2d 237, 1998)

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered June 19, 1997, which, inter alia, denied defendant’s motion for summary judgment dismissing the complaint and for summary judgment upon his counterclaim, unanimously affirmed, without costs.

Defendant did not establish his entitlement to judgment as a matter of law “by tender of evidentiary proof in admissible form” either with respect to the contested issue of plaintiff’s status (i.e., whether plaintiff was a joint venturer or a commissioned salesman), relevant to the disposition of the complaint, or with respect to the issue of whether plaintiff in fact wrongfully diverted business from defendant, relevant to the disposition of defendant’s counterclaim (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). Accordingly, the denial of defendant’s motion for summary judgment was correct in its entirety (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Concur — Sullivan, J. P., Milonas, Rosenberger and Andidas, JJ.