Aetna Casualty & Surety Co. v. Merchants Mutual Insurance

Appellate Division of the Supreme Court of New York

Aetna Casualty & Surety Co. v. Merchants Mutual Insurance

84 A.D.2d 736, 444 N.Y.S.2d 79, 1981 N.Y. App. Div. LEXIS 15898

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 24, 1981

StatusPublished

Cited by14 cases

This text of 84 A.D.2d 736 (Aetna Casualty & Surety Co. v. Merchants Mutual Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Aetna Casualty & Surety Co. v. Merchants Mutual Insurance, 84 A.D.2d 736, 444 N.Y.S.2d 79, 1981 N.Y. App. Div. LEXIS 15898 (N.Y. Ct. App. 1981).

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Opinion

Order, Supreme Court, New York County (Blyn, J.), entered May 12, 1981, which, inter alia, denied the motions of defendants Merchants Mutual and Ross, Rowan & Kane for an order pursuant to CPLR 3014 and 3024 (subd [a]) directing plaintiff to state, and number separately each cause of action, unanimously reversed, on the law, with costs and disbursements, and the motion granted and the complaint dismissed with leave to replead within 24 days of service of a copy of this order. Aetna, an excess insurer, as subrogee and in its own right, has sued several defendants, including the primary insurer and its house counsel. Plaintiff alleged bad faith, breach of contract, investigative failures, malpractice and breach of duty arising out of said defendants’ inadequacies in handling a third-party claim against the insured, and claims that as a result of such conduct it was forced to pay $246,000 after verdict and judgment. The complaint, a veritable novella, consisting of 42 pages and 104 paragraphs, one of which is 11 pages in length, includes quotations from testimony at the trial of the underlying action, examinations before trial and documents received in evidence, as well as the trial court’s charge on contributory negligence. It is, in our view, a prime example of a loosely drawn, verbose and poorly organized pleading, and is totally at variance with the requirements of CPLR 3014 that a “pleading shall consist of plain and concise statements in consecutively numbered paragraphs *** separately stated and numbered”. (See Foley v D’Agostino, 21 AD2d 60.) Moreover, the first four causes of action are pleaded against all defendants collectively without any specification as to the precise tortious conduct charged to a particular defendant. A defendant is entitled to notice of “the material elements of each cause of action”. (CPLR 3013.) Defendants cannot reasonably be required to frame a response to the complaint in its present state. Accordingly, the complaint is dismissed with leave to replead. Concur — Sandler, J. P., Sullivan, Carro, Markewich and Lupiano, JJ.

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Order, Supreme Court, New York County (Blyn, J.), entered May 12, 1981, which, inter alia, denied the motions of defendants Merchants Mutual and Ross, Rowan & Kane for an order pursuant to CPLR 3014 and 3024 (subd [a]) directing plaintiff to state, and number separately each cause of action, unanimously reversed, on the law, with costs and disbursements, and the motion granted and the complaint dismissed with leave to replead within 24 days of service of a copy of this order. Aetna, an excess insurer, as subrogee and in its own right, has sued several defendants, including the primary insurer and its house counsel. Plaintiff alleged bad faith, breach of contract, investigative failures, malpractice and breach of duty arising out of said defendants’ inadequacies in handling a third-party claim against the insured, and claims that as a result of such conduct it was forced to pay $246,000 after verdict and judgment. The complaint, a veritable novella, consisting of 42 pages and 104 paragraphs, one of which is 11 pages in length, includes quotations from testimony at the trial of the underlying action, examinations before trial and documents received in evidence, as well as the trial court’s charge on contributory negligence. It is, in our view, a prime example of a loosely drawn, verbose and poorly organized pleading, and is totally at variance with the requirements of CPLR 3014 that a “pleading shall consist of plain and concise statements in consecutively numbered paragraphs *** separately stated and numbered”. (See Foley v D’Agostino, 21 AD2d 60.) Moreover, the first four causes of action are pleaded against all defendants collectively without any specification as to the precise tortious conduct charged to a particular defendant. A defendant is entitled to notice of “the material elements of each cause of action”. (CPLR 3013.) Defendants cannot reasonably be required to frame a response to the complaint in its present state. Accordingly, the complaint is dismissed with leave to replead. Concur — Sandler, J. P., Sullivan, Carro, Markewich and Lupiano, JJ.

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84 A.D.2d 736, 444 N.Y.S.2d 79, 1981 N.Y. App. Div. LEXIS 15898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-casualty-surety-co-v-merchants-mutual-insurance-nyappdiv-1981.

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