Ordered that the judgment is affirmed, with one bill of costs.
To succeed on a motion for summary judgment, the proponent must establish the cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor. To defeat the motion, the adverse party must show facts sufficient to require a trial of any issue of fact other than an issue as to the amount or the extent of the damages (CPLR 3212).
We find that by tendering his shares for the merger consideration, the plaintiff acquiesced in the transaction and is now barred from attacking it (see, Anderson v International Mins. Chem. Corp., 295 N.Y. 343; Sandfield v Goldstein, 33 A.D.2d 376, affd 28 N.Y.2d 794). We agree with the Supreme Court that the plaintiff failed to carry his burden of showing any triable issue of fact. Thompson, J.P., Brown, Rubin and Eiber, JJ., concur.