Sadif, S. A. v. Burnham & Co.

20 A.D.2d 777, 247 N.Y.S.2d 654, 1964 N.Y. App. Div. LEXIS 4206

Opinion

Order, entered on January 28, 1964, unanimously modified, on the law and the facts and in the exercise of discretion, to delete the provisions for the granting of the cross motion, the cross motion to strike cause from the calendar is denied, and the order otherwise affirmed, with $20 costs and disbursements to appellant. Under rule 3402 of the Civil Practice Law and Rules, a note of issue may be filed “At any time after issue is first joined”. Under rule 3211 of the Civil Practice Law and Rules, a motion challenging the sufficiency of defenses may be made at any time prior to, or even upon the trial. (See 4 Weinstein-Korn-Miller, N. Y. Civ. Prae., par. 3211.47; McKinney’s Book 7B, CPLR 3211, Note, p. 326.) Therefore, when an action is otherwise “ready for trial”, it is unrealistic to construe the Statement of Readiness Rule (New York and Bronx Counties Supreme Ct. Rules, rule IV, subd. 4) as requiring the right to file a note of issue to be held in abeyance pending the determination of the appeal by plaintiff from an order denying its motion to strike certain defenses in defendants’ answer. Concur — Botein, P. J., Valente, McNally, Stevens and Eager, JJ.