Habiby v. Habiby

23 A.D.2d 558, 256 N.Y.S.2d 634, 1965 N.Y. App. Div. LEXIS 4846

Opinion

Order, entered on September 29, 1964, unanimously modified, on the law and in the exercise of discretion, with $30 costs and disbursements to the appellant, and the motion is granted to the extent of striking items “ 3 ”, “ 4 ” and “ 5 ” of the prayer for relief in the plaintiff’s reply, with leave, however, for the plaintiff to apply for permission to serve an amended complaint setting forth in such amended complaint a cause of action for separation. Prior to the enactment of CPLR 3011 the law was clear that a counterclaim could not be interposed in a reply (see Swertz v. Swertz, 28 Mise 2d 904 and eases cited ■therein). There is nothing in the language of CPLR 3011 that mandates a ’departure from that rule, nor does that language indicate any such intention on the part of the Legislature. (See 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3019.05.) Accordingly, the dictates of an orderly and efficient disposition of litigation requires the continuance of the practice as heretofore followed. Concur — Breitel, J. P., Rabin, Valente, Stevens and Staley, JJ.