The second contract, which incorporates the first contract by reference, refers only to the "editions". See, e.g., A.F.L. Falck, S.p.A. v. E.A. Karay Co., 639 F.Supp. 314, 320 (S.D.N.Y. 1986) (where one contract incorporates another contract by reference, it is appropriate to examine both contracts to determine the parties' intent). Thus, it is equally plausible to conclude that had the parties intended the assignment in the second contract to include Werbungs' rights to income from the use of the illustrations, they knew how to do so expressly. Accordingly, because the contract is susceptible to more than one reasonable interpretation, the district court properly submitted the issue of contract interpretation to the jury.

(a) of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer.See N.Y. U.C.C. § 2-709(a) (McKinney 1993); see also A.F.L. Falck, S.p.A v. E.A. Karry Co., 639 F. Supp. 314, 322 (S.D.N.Y 1986) (granting summary judgment where seller sold and delivered tubular steel to buyer for agreed price; seller's performance was complete on delivery and buyer's acceptance of goods entitled seller to the agreed upon price.) N.Y. U.C.C. 2-606(1)(b) provides that goods are deemed accepted when the buyer "(b) fails to make an effective rejection (subsection (1) of Section 2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them."

This court entered a judgment on July 9, 1986 against Karay, as judgment debtor, in the amount of $772,002.15. See A.F.L. Falck, S.p.A. v. E.A. Karay Company, Inc., 639 F. Supp. 314 (S.D.N.Y. 1985). Falck filed the petition in this action in supplementary proceedings on May 3, 1989 seeking the payment of a debt owed to a judgment debtor.

The goods are accepted when the buyer "does any act inconsistent with the seller's ownership." U.C.C. § 2-606(1)(c); see also A.F.L. Falck S.p.A. v. E.A. Karay Co., 639 F.Supp. 314, 321 (S.D.N.Y. 1986). Jervin accepted the goods by using them in the Hillside Honda project.

However, the defendants' unsubstantiated and conclusory allegations failed to raise triable issues of fact which would have precluded the court from granting the plaintiff's motion (see, North Fork Bank v Hamptons Mist Mgt. Corp., 225 A.D.2d 596 [decided herewith]; North Fork Bank v Rosen, 225 A.D.2d 598 [decided herewith]). Moreover, while we agree that it was improper for the Supreme Court to hold that the April 24, 1991, release executed by the defendant Leonard Rosen in favor of the plaintiff served as a defense to all of the defendants' counterclaims (see, A.F.L. Falck, S.p.A. v Karay Co., 639 F. Supp. 314, 320), the counterclaims were properly dismissed since the defendants failed to raise any triable issue of fact with respect to those counterclaims (cf., Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175; Alumax Aluminum Corp. v Norstar Bank, 168 A.D.2d 163). We have examined the defendants' remaining contentions and find them to be without merit.

However, the defendant's unsubstantiated and conclusory allegations failed to raise triable issues of fact which would have precluded the court from granting the plaintiff's motion (see, North Fork Bank v Hamptons Mist Mgt. Corp., 225 A.D.2d 595 [decided herewith]; North Fork Bank v Hamptons Mist Mgt. Corp., 225 A.D.2d 596 [decided herewith]). Moreover, while we agree that it was improper for the Supreme Court to hold that the April 24, 1991, release executed by the defendant in favor of the plaintiff served as a defense to all of the defendant's counterclaims (see, A.F.L.Falck, S.p.A. v Karay Co., 639 F. Supp. 314, 320), the counterclaims were properly dismissed as the defendant failed to raise triable issues of fact with respect to those counterclaims (cf., Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175; Alumax Aluminum Corp. v Norstar Bank, 168 A.D.2d 163). We have examined the defendant's remaining contentions and find them to be without merit.

In the present case, the appellants' conclusory and unsubstantiated assertions are not supported by competent evidence and are insufficient to defeat the plaintiff's motion (see, Zuckerman v City of New York, 49 N.Y.2d 557; LBV Props. v Greenport Dev. Co., supra; see also, North Fork Bank v Hamptons Mist Mgt. Corp., 225 A.D.2d 595 [decided herewith]; North Fork Bank v Rosen, 225 A.D.2d 598 [decided herewith]). Moreover, while we agree that it was improper for the Supreme Court to hold that the April 24, 1991, release executed by the defendant Leonard Rosen in favor of the plaintiff served as a defense to all of the appellants' counterclaims (see, A.F.L. Falck, S.p.A. v Karay Co., 639 F. Supp. 314, 320), the counterclaims were properly dismissed as the appellants failed to raise any triable issues of fact with respect to the counterclaims (cf., Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175, supra; Alumax Aluminum Corp. v Norstar Bank, 168 A.D.2d 163). We have examined the appellants' remaining contentions and find them to be without merit.