1 These include primarily lost profits in connection with undelivered portions of the alleged contracts set forth in the complaint.

2 Plaintiffs had obtained a prior order of attachment, but after its service City Bank filed a statement with the United States Marshal that the defendant, the Republic of Haiti, had no bank account with it, nor was it in possession or control of any funds or property belonging to the defendant. Thereafter plaintiff obtained the present attachment.

3 N.Y. Business Corporation Law § 1314 (McKinney Supp. 1973).

4 See Republic of Mexico v. Hoffman, 324 U.S. 30, 34-35 (1945); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985 (1971)5 Victory Transport, Inc. v. Comisaria General, 336 F.2d 354, 360 (2d Cir. 1964), cert, denied, 381 U.S. 934 (1965).

5 26 Dept. St. Bull. (1952); see New York & Cuba Mail S.S. Co. v. Republic of Korea, 132 F. Supp. 684 (S.D.N.Y. 1955).

6 336 F.2d 354 (2d Cir. 1964), cert, denied. 381 U.S. 934 (1965). See also Heaney v. Government of Spain, 445 F.2d 501 (2d Cir. 1971).

7 The plea of sovereign immunity constitutes an affirmative defense, see Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103, 106 (2d Cir.), cert, denied, 385 U.S. 931 (1966), and as such, defendant’s motion may be considered under Rule 12(b)(6) of the Federal Rules of Civil Procedure as one for dismissal of the complaint for failure to state a claim for relief. See Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965); Butcher v. United Elec. Coal Co., 174 F.2d 1003, 1006 (7th Cir. 1949); Bradley v. American Radiator & Std. Sanitary Corp., 6 F.R.D. 37, 39 (S.D.N.Y. 1946), aff’d, 159 F.2d 39 (2d Cir. 1947). Since the parties have submitted affidavits to support their respective positions, the Rule 12(b)(6) motion may be disposed of as one for summary judgment as provided in Rule 56.

8 A para-military or police force assigned to guard the president and other members of the Haitian government.

9 Moreover, goods need not be of an exclusively military nature (i.e., weapons) for the contracting sovereign to be entitled to a grant of immunity, as long as they are for the use of its armed forces. The court in Victory Transport, for example, would apparently have granted sovereign immunity in the case of a nation purchasing shoes for its army. 336 F.2d at 359.Cf. Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198, 1200 (2d Cir.), cert, denied. 404 U.S. 985 (1971); Heaney v. Government of Spain, 445 F.2d 501, 503-04 (2d Cir. 1971). See also Kingdom of Roumania v. Guaranty Trust Co., 250 F. 341 (2d Cir.), cert, denied, 246 U.S. 663 (1918) (nation entitled to sovereign immunity in suit on contract for purchase of boats for its army); Comment, Judicial Adoption of Restrictive Immunity for Foreign Sovereigns. 51 Va. L. Nov. 316, 323-24 (1965). But see Et Ve Balik Kurumu v. B.N.S. Int’l Sales Corp., 25 Misc.2d 299, 204 N.Y.S.2d 971 (Sup. Ct. 1960), aff’d. 17 App. Div. 2d 927, 233 N.Y.S.2d 1013 (1962)(purchase of meat supply for army held not to be a public act); Article, New Developments in the Law of Sovereign Immunity. 36 Modern L. Rev. 18, 23 (1973).

10 Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416 (1964); Underhill v. Hernandez, 168 U.S. 250, 252 (1897).

11 Reeves, The Foreign Sovereign Before United States Courts, 38 Fordham L. Rev. 455, 479 (1970).

12 Other exhibits submitted by plaintiffs similarly fail to raise a material issue of fact. A letter, dated November 29, 1973, from an official with the United States Department of the Navy, written in response to a letter from plaintiffs’ counsel, merely states that the Navy will not assist Haiti in obtaining “items which may duplicate the orders Aerotrade was under contract to fill and deliver.” It in no way indicates that the contracts between plaintiffs and defendant did not concern the Haitian armed forces. In addition, plaintiffs have submitted “summaries,” apparently written by plaintiffs’ president, “of the nature and character of the goods and services” that are the subject matter of this lawsuit. These “summaries” are not affidavits and are not the type of material that may be considered by a court on a motion for summary judgment. See Fed. R. Civ. P. 56(e). In any event, they do not raise substantial issues of fact as to the non-military nature of the contracts.