Syracuse Equipment Co. v. Lebis Contracting, Inc.

—Order unani [993] mously affirmed with costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Mahoney, J.). We add only that, contrary to defendant’s argument, the affidavit of plaintiffs attorney may properly “serve as the vehicle for the submission of acceptable attachments which do provide ‘evidentiary proof in admissible form’, e.g., documents, transcripts” (Zuckerman v City of New York, 49 NY2d 557, 563; see also, Oían v Farrell Lines, 64 NY2d 1092, 1093). The court properly granted plaintiffs motion to dismiss the counterclaim even though the motion was based on a defense not pleaded in plaintiffs reply; defendant may not cláim surprise by plaintiffs reliance upon the terms of the lease between the parties as a defense to the counterclaim (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:ll, at 319-320; see also, Rogoff v San Juan Racing Assn., 77 AD2d 831, 832, affd 54 NY2d 883; ATN Marts v Ireland, 195 AD2d 959, 960; Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713). (Appeal from Order of Supreme Court, Erie County, Mahoney, J. — Dismiss Pleading.) Present — Denman, P. J., Wisner, Pigott, Jr., Callahan and Fallon, JJ.