The material documents are ambiguous whether defendant Associates was intended to be a purchaser of unsold shares, an ambiguity that is not resolved by the extrinsic evidence offered by the parties, and, upon a review of the merits and relative equities, we decline to disturb the IAS Court's exercise of discretion in denying plaintiff a preliminary injunction in respect thereto ( see, After Six v. 201 E. 66th St. Assocs., 87 A.D.2d 153, 155, appeal dismissed 57 N.Y.2d 835).
Defendant Brumer, who did not separately appear or make a motion before the IAS Court, purports to cross appeal from the denial of the motion to dismiss the action as against him, which sounds in breach of fiduciary duty. This fact-based argument might have been countered had it been made before the IAS Court, and should not therefore be considered for the first time on appeal ( City of New York v. Stack, 178 A.D.2d 355, lv denied 80 N.Y.2d 753). Similarly, plaintiff's argument that it is entitled to dispositive relief because defendant Associates is not a natural person is made not only for the first time on appeal, but indeed, for the first time in plaintiff's reply brief ( see, State Farm Fire Cas. Co. v. LiMauro, 103 A.D.2d 514, 521-522, affd 65 N.Y.2d 369), and, in any event, is without merit.
Concur — Sullivan, J.P., Ellerin, Wallach, Williams and Mazzarelli, JJ.