Blei v. Inter-Maritime Forwarding Co.

Appellate Division of the Supreme Court of New York

Blei v. Inter-Maritime Forwarding Co.

73 A.D.2d 660, 423 N.Y.S.2d 840

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

DecidedDecember 24, 1979

StatusPublished

This text of 73 A.D.2d 660 (Blei v. Inter-Maritime Forwarding Co.) 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.

Bluebook

Blei v. Inter-Maritime Forwarding Co., 73 A.D.2d 660, 423 N.Y.S.2d 840 (N.Y. Ct. App. 1979).

Pincite

Opinion

In an action to recover attorney’s fees under a retainer agreement, defendant appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County, dated February 27, 1979, as granted the branch of plaintiff’s motion which sought dismissal of defendants second and third affirmative defenses, and plaintiff cross-appeals from so much of the same order as denied the branch of his motion which sought dismissal of the fourth and fifth affirmative defenses. Order modified, on the law, by deleting therefrom the provision which denied the branch of the motion seeking dismissal of the fourth and fifth affirmative defenses and substituting therefor a provision granting the said branch of plaintiff’s motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements, and with leave to defendant to replead as to the second, third, fourth and fifth affirmative defenses. Defendant’s time to replead is extended until 20 days after service upon it of a copy of the order to be entered hereon, together with notice of entry thereof. The affirmative defenses in question are replete with mere conclusory allegations. As such, they fail to comport with the requirements of CPLR 3013 (see Foley v D’Agostino, 21 AD2d 60) and, in the case of the affirmative defense predicated upon fraud, it fails to comport with CPLR 3016 as well (see Lanzi v Brooks, 54 AD2d 1057). We do not suggest, however, that the defendant was required to make any factual showing in support of the facial adequacy of its defenses in the context of a motion pursuant to CPLR 3211 (subd [b]) (see Raine v Allied Artists Prods., 63 AD2d 914). Defendant is granted leave to replead its second through fifth affirmative defenses in accordance with the mandates of procedural law (see CPLR 3013, 3016, subd [b]). Lazer, J. P., Gulotta, Cohalan and Gibbons, JJ., concur.

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In an action to recover attorney’s fees under a retainer agreement, defendant appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County, dated February 27, 1979, as granted the branch of plaintiff’s motion which sought dismissal of defendants second and third affirmative defenses, and plaintiff cross-appeals from so much of the same order as denied the branch of his motion which sought dismissal of the fourth and fifth affirmative defenses. Order modified, on the law, by deleting therefrom the provision which denied the branch of the motion seeking dismissal of the fourth and fifth affirmative defenses and substituting therefor a provision granting the said branch of plaintiff’s motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements, and with leave to defendant to replead as to the second, third, fourth and fifth affirmative defenses. Defendant’s time to replead is extended until 20 days after service upon it of a copy of the order to be entered hereon, together with notice of entry thereof. The affirmative defenses in question are replete with mere conclusory allegations. As such, they fail to comport with the requirements of CPLR 3013 (see Foley v D’Agostino, 21 AD2d 60) and, in the case of the affirmative defense predicated upon fraud, it fails to comport with CPLR 3016 as well (see Lanzi v Brooks, 54 AD2d 1057). We do not suggest, however, that the defendant was required to make any factual showing in support of the facial adequacy of its defenses in the context of a motion pursuant to CPLR 3211 (subd [b]) (see Raine v Allied Artists Prods., 63 AD2d 914). Defendant is granted leave to replead its second through fifth affirmative defenses in accordance with the mandates of procedural law (see CPLR 3013, 3016, subd [b]). Lazer, J. P., Gulotta, Cohalan and Gibbons, JJ., concur.

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Bluebook (online)

73 A.D.2d 660, 423 N.Y.S.2d 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blei-v-inter-maritime-forwarding-co-nyappdiv-1979.

Opinion

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