Gibel v. Lotos Oil & Distributing Corp.

231 A.D. 862

Opinion

Order denying motion to strike out reply as frivolous reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended reply within ten days after notice of entry of the order upon this decision, upon payment of such costs. The amended answer contains allegations of fact which did not appear in the complaint, and the previous order denying defendant’s motion to dismiss the complaint is not controlling upon the decision of this motion. The denials contained in plaintiff’s reply are insufficient. The first is bad in form (D. & G. Girl Coat Co., Inc., v. Kafka, 218 App. Div. 607; affd., 245 N. Y. 646), and the second is a denial of a conclusion of law. Lazansky, P. J., Young, Kapper, Hagarty and Tompkins, JJ:, concur.