Mardan Construction Corp. v. Rogers Auto Sales Corp.

12 A.D.2d 770, 209 N.Y.S.2d 329, 1961 N.Y. App. Div. LEXIS 13582

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 1961
• Status: Published

Opinion

In an action to foreclose a mechanic’s lien and for a judgment against defendant Irving Rogers, individually, on his personal guarantee, the defendants, other than the defendant Levitt, appeal from an order of the Supreme Court, Queens County, dated April 2, 1959, which granted plaintiff’s motions and which: (a) struck out as sham certain allegations and defenses in the answers of said defendants, and (b) dismissed all the defenses and counterclaims in said answers for patent insufficiency, with leave to replead. The single order was entered on two motions made by plaintiff. Order reversed, with $19 costs and disbursements, and motions denied. On this record, we believe it was an improvident exercise of discretion to strike out the attacked allegations and defenses as sham. We also believe that all the attacked defenses and counterclaims are sufficient on their face. Nolan, P. J., Beldock, Ughetta and Kleinfeld, JJ., concur; Brennan, J., not voting. [18 Misc 2d 767.]