Mirabella v. Banco Industrial de la Republica Argentina

34 A.D.2d 630, 309 N.Y.S.2d 400, 1970 N.Y. App. Div. LEXIS 5110

Opinion

Order entered October 23, 1969 unanimously modified, on the law and the facts, and in the exercise of discretion, to provide that the leave granted to defendant to serve the amended answer be granted upon condition of the payment of $1,000. to plaintiff to cover his costs and reasonable attorneys’ fees in connection with the litigation of issues arising under the added defense brought into the action at this late date; and order otherwise affirmed, with $50 costs and disbursements to plaintiff-appellant. This action was commenced in 1961 and was followed by a number of motions and appeals, including extensive disclosure proceedings here and abroad. The interposing at this time of the act of state doctrine as an affirmative defense will require some duplication of those pretrial proceedings and motions at considerable added expense to plaintiff. In the special circumstances of this case, reasonable terms should have been imposed as a condition to allowing the amendment of the answer. (See Ciunei V. Wella Gorp., 23 A D 2d 754.) The order herein shall provide for the payment of costs within 60 days after entry of the order and will further provide that before the trial of any issues in this action, the plaintiff shall have the opportunity to complete pretrial proceedings with respect to the issues arising under this newly added defense and to renew his motion to strike the defense as insufficient in law. Further, the order shall provide that the issues relative to this defense shall be tried with the defenses of release and statute of limitations, a separate trial limited to these issues having been previously directed by this court (29 A D 2d 940). Concur — Stevens, P. J., Eager, McGivern, McNally and Tilzer, JJ.