SYRACUSE EQUIPMENT CO INC v. LEBIS CONTRACTING INC (1998)

 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 plaintiff's 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 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718;  see also, Olan v. Farrell Lines, 64 N.Y.2d 1092, 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229).   The court properly granted plaintiff's motion to dismiss the counterclaim even though the motion was based on a defense not pleaded in plaintiff's reply;  defendant may not claim surprise by plaintiff's 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 N.Y., Book 7B, CPLR C3212:11, at 319-320;  see also, Rogoff v. San Juan Racing Assn., 77 A.D.2d 831, 832, 431 N.Y.S.2d 16, affd. 54 N.Y.2d 883, 444 N.Y.S.2d 911, 429 N.E.2d 418;  ATN Marts v. Ireland, 195 A.D.2d 959, 960, 600 N.Y.S.2d 590;  Olean Urban Renewal Agency v. Herman, 101 A.D.2d 712, 713, 475 N.Y.S.2d 955).

Order unanimously affirmed with costs.

MEMORANDUM: