Inland Credit Corp. v. Bluds

27 A.D.2d 928, 279 N.Y.S.2d 426, 1967 N.Y. App. Div. LEXIS 4320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 1967
• Status: Published

Opinion

Order granting plaintiff’s motion for leave to amend the complaint and for summary judgment, unanimously modified, on the law and the facts, to the extent of deleting the decretal provisions other than those granting leave to amend the complaint in the form annexed to said order, dispensing with service of the amended complaint, and preserving the calendar status of the action, and the judgment entered pursuant to said order vacated, with $50 costs and disbursements to abide the event. Said order as so modified is otherwise affirmed, with leave to defendants to answer the amended complaint within 10 days after service of a copy of the order entered hereon with notice of entry, and without prejudice to a renewal of plaintiff’s motion for summary judgment after joinder of issue. Granting leave to amend the complaint was clearly proper. In our opinion, however, Special Term went inadvisedly further with regard to defendants’ answer. The court ordered that the answer be deemed amended in respects which at plaintiff’s suggestion the court itself specified; and also ordered that the answer as so amended stand as defendants’ answer to the amended complaint. Orderly procedure contemplates that a defendant be afforded an opportunity to answer an amended complaint (3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3025.32), and we are not persuaded that the instant deviation was justified. After issue has been joined renewal of the motion for summary judgment, if plaintiff is so advised, will then be timely (CPLR 3212, subd. [a]). Settle order on notice. Concur—■ Botein, P. J., Stevens, Tilzer, McNally and McGivern, JJ.