Circle Industries Corp. v. Werner Krebs, Inc.

65 A.D.2d 709, 410 N.Y.S.2d 94, 1978 N.Y. App. Div. LEXIS 13475

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1978
• Status: Published

Opinion

Order, Supreme Court, Bronx County, entered April 5, 1978, denying plaintiffs motion for summary judgment in lieu of complaint (CPLR 3213), unanimously modified, on the law, and in the exercise of discretion, to the extent of directing the serving of formal pleadings, plaintiff to serve and file its complaint within 20 days from the date of entry of the order herein and the defendants to interpose an answer within 10 days thereafter with a reply, if any, to be served within five days after service of the answer, all without prejudice to a further motion for summary judgment by plaintiff immediately upon joinder of issue, and, as so modified, affirmed, without costs and disbursements. The answering papers by defendants raise a vaguely articulated counterclaim relevant to the relationship between the parties and a purported abuse by plaintiff of a power of financial oversight allegedly given by defendants to plaintiff with respect to defendants’ affairs. On this record the issues relating to this counterclaim and its possible bearing on plaintiffs request for summary judgment have not been sufficiently sharpened to permit of reasoned resolution. Under these circumstances, prudence mandates that formal pleadings be served to remedy this defect and that plaintiffs request for relief be made and viewed in such context. In this connection, it is noted that plaintiff cannot be prejudiced, if eventually successful, by this brief halt in the accelerated process provided by CPLR 3213: it was conceded on argument that defendant would be able to pay the judgment sought by plaintiff. Concur—Lupiano, J. P., Evans, Markewich and Sullivan, JJ.