Opinion
October 4, 1971
Order, Supreme Court, New York County, entered May 6, 1971, inter alia striking counterclaims of defendant, unanimously reversed to the extent appealed from, on the law, the motion to dismiss the counterclaims is denied, and the counterclaims are reinstated. Appellant shall recover of respondent $50 costs and disbursements of this appeal. The so-called Compromise Agreement, on which Special Term predicated its conclusion, and to which the defendant was not a signatory, is not clear as to its scope or intent vis-a-vis the defendant; nor is the record sufficient to sustain a determination that the defendant intended to waive rights as against General Motors. There being no clear and unequivocal evidence of intent to waive on the part of the defendant, and there being apparent at least an "arguable issue" in that respect, the dismissal by Special Term of the counterclaims as a matter of law, was erroneous. In our view, the validity of the counterclaims involve mixed questions of law and fact and are better reserved for trial. Finally, our holding is not indicative of a belief the counterclaims are meritorious; nor have we reached our disposition by placing any reliance on the affidavit of H. Robert Feingold, Esq., referred to in appellant's reply brief, which we regard as dehors the record.
Concur — Capozzoli, J.P., McGivern, Nunez and McNally, JJ.