Long Island Rail Road v. Grossman

3 A.D.2d 763, 160 N.Y.S.2d 237, 1957 N.Y. App. Div. LEXIS 6137

Opinion

Appeal from (1) an order denying appellants’ motion for summary judgment dismissing the complaint and from (2) so much of an order as grants respondent’s motion to strike out for insufficiency the first, second, and third separate and complete defenses in appellants’ answers. Order denying appellants’ motion affirmed, without costs. Order granting respondent’s motion modified 'by striking from the ordering paragraph the words “first” and “fourth defense” and by substituting for the latter the words “ first and fourth defenses ”. As so modified, order insofar as appealed from affirmed, without costs. While we think the Special Term might properly have considered the documentary evidence presented on the motion for summary judgment (Rubin v. Koppelman, 263 App. Div. 733), in our opinion the true nature of the cause of action alleged is not free from doubt. Under such circumstances, on a motion to strike out defenses for insufficiency, speculation will not be indulged in to determine whether or not the cause of action is barred by some Statute of Limitations. Nonetheless, on a trial it may develop that the defense of the three-year statute is valid, and appellants should not be precluded from an opportunity to present that defense. (See Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290; Rubin v. Koppelman, supra.) Wenzel, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.