Opinion
April 12, 1999
Appeal from the Supreme Court, Nassau County (Dunne, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The complaint failed to state a cause of action to recover damages for breach of an escrow agreement, assuming, arguendo, that the letter of the defendant dated June 10, 1991, was sufficient to constitute such an agreement ( but see, National Union Fire Ins. Co. v. Proskauer Rose Goetz Mendelsohn, 165 Misc.2d 539 , affd 227 A.D.2d 106). The Supreme Court properly determined that the plaintiff's allegations regarding the defendant's obligations under the alleged escrow agreement were refuted by the express terms of the letter dated June 10, 1991, with which terms the defendant fully complied ( see generally, Takayama v. Schaefer, 240 A.D.2d 21).
The plaintiff's current assertion that the defendant engaged in some unspecified fraudulent conduct toward her was not set forth in the complaint or advanced in the Supreme Court. Hence, we do not consider that contention on this appeal ( see, Matter of Matarrese v. New York City Health Hosps. Corp., 247 A.D.2d 475; Rushford v. Facteau, 247 A.D.2d 785; Orellano v. Samples Tire Equip. Supply Corp., 110 A.D.2d 757).
Santucci, J. P., Sullivan, Florio and McGinity, JJ., concur.