Majority
p. 944Irene Schleimer, Appellant, v Herman Googe, Respondent, et al., Defendant.
— In an action on an automobile retail installment sales contract, plaintiff appeals from a judgment of the Supreme Court, Kings County, dated December 11, 1974, after a nonjury trial, in favor of respondent, upon the trial court’s dismissal of the complaint as against respondent. Judgment affirmed, with costs. The finding of the trial court that respondent had not entered into a valid and binding contract with the seller was clearly supported by the weight of the evidence. Furthermore, the evidence established that the seller never tendered delivery of the automobile in question,
p. 945
and, under the circumstances not only did the risk of loss remain upon it (Uniform Commercial Code, § 2-509, subd [3]), but respondent, the buyer, had the right to cancel the contract (see Uniform Commercial Code, §§ 2-507, subd [1]; 2-711, subd [1]). Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.