Summary judgment is denied. New York City Tr. As discussed above, the documentary evidence may be held to support the allegations regarding the number of items of equipment. In any event, defendants can obtain further specific details in the course of discovery. Defendants last seek summary judgment dismissing the fourth cause of action to correct a mutual mistake in the amount paid by plaintiffs to satisfy the consolidated mortgages.
Summary judgment dismissing the fourth cause of action without prejudice is granted.
In the amended complaint, plaintiffs base the fourth cause of action solely on allegations of a mutual mistake in calculating the principal amount of the consolidated mortgage due. Plaintiffs' allegations regarding defendants' subsequent unilateral modifications to the settlement agreement terms, a resulting miscalculation in the interest due and certain improperly assessed closing costs do not appear in the amended complaint and are raised for the first time in defendants' motion papers. Therefore, the issues raised by these allegations are not now properly before the Court and will not be considered. The Court has considered the parties' remaining arguments and finds them to be without merit. Counsel are directed to contact the clerk of IA Part 49 to schedule a preliminary conference in this action.