Majority
p. 441ARC Municipal Securities Corp. et al., Respondents, v Kleinberg, Kaplan, Wolff & Cohen, P. C., Defendant. Kleinberg, Kaplan, Wolff & Cohen, P. C., Interpleader Plaintiff, v ARC Municipal Securities Corp. et al., Interpleader Defendants. H. D. Acquisition Corp., Doing Business as Harry Downs & Co., Inc., Cross-Claim Plaintiff-Appellant, v ARC Municipal Securities Corp. et al., Cross-Claim Defendants-Respondents.
Order, Supreme Court, New York County (Beverly Cohen, J.), entered on January 22, 1990, which, inter alia, granted a motion by plaintiffs pursuant to CPLR 3212 (e) for partial summary judgment on their first cause of action, unanimously affirmed, with costs.
The record demonstrates conclusively that the interpleader defendant and cross-claim plaintiff H.
p. 442
Securities Corp. that would have prevented the defendant escrowee from turning the disputed funds over to the plaintiffs, the sellers under the agreement. The plaintiffs’ motion was appropriately based on their verified complaint, which contained specific allegations of fact (cf., Bethlehem Steel Corp. v Solow, 51 NY2d 870 ). Although plaintiffs did not urge the untimeliness of the notice until submission of their reply papers, any prejudicial surprise to H. D. Acquisition Corp. (the purchaser under the agreement) was avoided by submission of the surreply affidavit. No triable issue of fact was raised, nor was it demonstrated that there was a need for additional discovery justifying denial of the motion (see, Poluliah v Fidelity High Income Fund, 102 AD2d 720 ). Concur— Carro, J. P., Ellerin, Wallach, Kupferman and Kassal, JJ.
Cases cited
- Bethlehem Steel Corp. v. Solow 51 NY2d 870 p. 442
- Poluliah v. Fidelity High Income Fund 102 AD2d 720 p. 442