Opinion
January 20, 2000
Order, Supreme Court, New York County (Lorraine Miller, J.), entered April 30, 1999, which, in an action by plaintiffs investors against defendant escrow agents for return of money deposited with defendants allegedly pursuant to a subscription agreement, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Carole R. Bernstein, for plaintiffs-respondents.
Leonard Anthony Rodes, for defendants-appellants.
ROSENBERGER, J.P., ELLERIN, WALLACH, LERNER, ANDRIAS, JJ.
Construing the evidence in the light most favorable to plaintiffs, issues of fact remain as to whether they deposited the money with defendants pursuant to the subscription agreement, which is ambiguous as to prohibitions upon the disbursement of subscription funds. The motion for summary judgment was also properly denied given outstanding depositions of defendants (CPLR 3212 [f]). We note the inadmissibility of the affirmation submitted on defendants' behalf (CPLR 2106 ), and defendants' improper use of plaintiffs' deposition transcripts without complying with CPLR 3116(a).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.