Summary
In Devlin v. Video Servs. Acquisition (188 A.D.2d 370), this Court, upon plaintiffs' appeal, unanimously affirmed an order of the same court and Justice which, inter alia, denied the plaintiffs' prior motion seeking to dismiss these same counterclaims, by stating, in pertinent part, that "[w]e agree with the IAS Court that issues of fact exist with respect to all of the counterclaims that cannot be resolved solely on the pleadings and proffered documents."
Summary of this case from Devlin v. Video Services Acquisition Corp.Opinion
December 10, 1992
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
Dismissal on the basis of documents is inappropriate if the documents do not "definitively dispose of the claim" (Demas v 325 W. End Ave. Corp., 127 A.D.2d 476, 477). We agree with the IAS Court that issues of fact exist with respect to all of the counterclaims that cannot be resolved solely on the pleadings and proffered documents.
We have not considered plaintiffs' arguments based on UCC 2-206, or on a purported privilege to send the subject letter of counsel, since these arguments are raised for the first time on appeal (City of New York v Stack, 178 A.D.2d 355, lv denied 80 N.Y.2d 753).
Concur — Milonas, J.P., Wallach, Asch and Rubin, JJ.