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MASADA UNIVERSAL CORP. v. GOODMAN SYS. CO., INC.

121 A.D.2d 518 (1986)

Masada Universal Corporation, Plaintiff and Third-Party Defendant-Respondent, v. Goodman System Company, Inc., Defendant and Third-Party Plaintiff-Appellant. Milton A. Turner et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 16, 1986

Order affirmed, with costs.

Special Term erred in considering the documentary evidence submitted in support of the motion to dismiss. The respondents first raised the documentary evidence defense (CPLR 3211 [a] [1]) in the motion to dismiss after service of the answer to the third-party complaint, and the defense was, therefore, waived (see, CPLR 3211 [e]). Further, Special Term did not give the parties adequate...

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