Devlin v. Video Services Acquisition ( 1992 )

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about July 9, 1991, which, inter alia, denied plaintiffs’ motion to dismiss defendants’ counterclaims pursuant to CPLR 3211 (a) (1) and (7), unanimously affirmed, with costs.

Dismissal on the basis of documents is inappropriate if the documents do not "definitively dispose of the claim” (Demas v 325 W. End Ave. Corp., 127 AD2d 476, 477). We agree with the IAS Court that issues of fact exist with respect to all of the counterclaims that cannot be resolved solely on the pleadings and proffered documents.

We have not considered plaintiffs’ arguments based on UCC 2-206, or on a purported privilege to send the subject letter of counsel, since these arguments are raised for the first time on appeal (City of New York v Stack, 178 AD2d 355, lv denied 80 NY2d 753). Concur — Milonas, J. P., Wallach, Asch and Rubin, JJ.