Toys "R" Us—Nytex, Inc. v. First Atlantic Realty Corp.

—Order, Supreme Court, New York County (Stuart C. Cohen, J.), entered April 10, 1992, which, to the extent relevant to the appeal as limited by the brief, granted plaintiffs motion pursuant to CPLR 1006 (f) for discharge from this action and denied defendant-appellant’s cross-motion for summary judgment, unanimously affirmed, with costs. Notwithstanding that the court considered the motion for discharge pursuant to CPLR 1006 without a full, written notice of motion, defendant-appellant was given adequate opportunity to demonstrate that plaintiff had some possible stake in the disputed funds, and was unable to do so (cf., Birnbaum v Marine Midland Bank, 96 AD2d 776, 777). Summary judgment was appropriately denied, since the record suggests that much has been hidden (see, Karen S. v Streitferdt, 172 AD2d 440). Concur—Murphy, P. J., Sullivan, Milonas, Asch and Nardelli, JJ.