ARC Municipal Securities Corp. v. Kleinberg, Kaplan, Wolff & Cohen, P. C.

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. D. Acquisition Corp. did not submit a timely written notice in compliance with the agreement of purchase and sale to plaintiff ARC Municipal 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.