
    James C. Couri et al., Appellants, v Westchester Country Club, Inc., Respondent.
   — In an action, inter alia, to recover damages for breach of contract, negligence, libel and slander, and for a declaration that the defendants wrongfully terminated the plaintiffs’ membership and lease, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Coppola, J.), entered March 4, 1991, which granted the defendant’s motion for leave to serve an amended answer asserting a second counterclaim, and for summary judgment on that counterclaim.

Ordered that the order is affirmed, with costs.

We reject the plaintiffs’ contention that the Supreme Court erred in granting the defendant leave to serve an amended answer asserting a second counterclaim (see, CPLR 3025), and in awarding partial summary judgment to the defendant based upon that counterclaim. In view of the evidentiary proof submitted by the parties and the circumstances of this case, consideration of the summary judgment motion was appropriate even though issue had not yet been joined (see, Weintraub v Rudin Estates Co., 160 AD2d 483; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:12, at 320).

We have examined the plaintiffs’ remaining contentions, and find that they are without merit. Eiber, J. P., O’Brien, Copertino and Pizzuto, JJ., concur.  