Ember v. Seidman

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered February 25, 1992 which, inter alia, denied plaintiffs’ motion for summary judgment in the amount of $330,000 and to strike defendants’ affirmative defense of contributory negligence, unanimously affirmed, with costs.

Triable issues of fact exist, including but not limited to whether defendant Tonelson selected the date on which plaintiff Norman Ember was to receive payment of the sale pro*310ceeds and the possible advice of prior accountants concerning the effects of the alternative minimum tax. The court properly directed the parties to proceed with discovery toward this end. Nor should this Court consider theories of liability not presented in the first instance (Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307, lv denied 78 NY2d 856). Concur— Carro, J. P., Ellerin, Kupferman and Kassal, JJ.