Opinion
March 7, 1991
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
The record demonstrates conclusively that the interpleader defendant and cross-claim plaintiff H.D. Acquisition Corp. did not submit a timely written notice in compliance with the agreement of purchase and sale to plaintiff ARC Municipal 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 N.Y.2d 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 A.D.2d 720).
Concur — Carro, J.P., Ellerin, Wallach, Kupferman and Kassal, JJ.