Anida Realty Corp. v. 6145 Realty Corp.

197 Misc. 157, 94 N.Y.S.2d 56, 1950 N.Y. Misc. LEXIS 1329

• Court: New York Supreme Court
• Decided: January 4, 1950
• Status: Published

Opinion

Aurelio, J.

Upon the foregoing papers this motion to vacate the demand for a bill of particulars is denied. It is within the contemplation of section 193-a of the Civil Practice Act that a third-party defendant may oppose the claims of plaintiff against the defendant, third-party plaintiff. This third-party defendant has squarely put in issue the allegations of plaintiff’s complaint. It follows that it is entitled to a bill of particulars. The demand is modified to the extent consented to with reference to item 2, and by striking item 6 and limiting items 7 and 8 to those leases as to which it is claimed' that there was a misrepresentation as to the amount of rent. The branch of the motion seeking an examination by plaintiff of the third-party defendant is likewise granted. While it is clear that the plaintiff’s complaint seeks no relief against the third-party defendant, the latter has elected, quite properly, to oppose plaintiff’s claims against1 the defendant. Under the doctrine of Dorros, Inc., v. Dorros Bros., Inc. (274 App. Div. 11), it would seem that an examination of the third-party defendant is therefore proper. This examination is granted as to all items. The bill of particulars in accordance with the modified demand shall be served within ten days of service of a copy of this order with notice of entry. The examination shall proceed at Special Term, Part II, at 10:30 a.m. on January 17, 1950, at which time and place all pertinent records shall be produced for use pursuant to section 296 of the Civil Practice Act.