Guy Construction, Inc. v. Entress

29 A.D.2d 835, 287 N.Y.S.2d 618, 1968 N.Y. App. Div. LEXIS 4574

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 1968
• Status: Published

Opinion

Order insofar as appealed from unanimously modified by striking the last paragraph thereof and as so modified affirmed, without costs. Memorandum: Defendant appeals from an order of Monroe Special Term which denied his motion to dismiss plaintiff’s complaint and in its last paragraph ordered him to serve an answer in conformity with the provisions of CPLR 3016 (subd. [f]). The complaint states a cause of action for goods sold and delivered and labor and services performed under a contract which plaintiff was not permitted to complete. Attached to the complaint are schedules purporting to set forth the items of plaintiff’s claims and the respective reasonable values thereof in attempted but insufficient compliance with CPLR 3016 (subd. [f]). Instead of pleading items of the account plaintiff specified “ material ordered ”, “ additional estimated balance due ”, “ ditch relocation work”, “grading work — amount unknown,” and “other items of damage — amounts unknown”. Having failed to comply with CPLR 3016 (subd. [f]) plaintiff cannot invoke its provision to require defendant to do so. (Brozyna v. Andreski, 6 A D 2d 601; Royal Ind. Co. v. Hill, 281 App. Div. 1001.) (Appeal from certain parts of an order of Monroe Special Term denying motion to dismiss complaint or to separately state and number.) Present — Goldman, J. P., Del Vecchio, Marsh, Witmer and Henry, JJ.