Weiss v. Fifth Washington Square Owning Corp.

37 Misc. 2d 99, 233 N.Y.S.2d 825, 1962 N.Y. Misc. LEXIS 2529

Opinion

George Tilzer, J.

Defendants Fifth Washington Square Owning Corporation and Morton S. Wolf move for dismissal of the amended complaint verified August 20,1962 for failure to comply with the order of July 30, 1962 or, in the alternative, directing plaintiffs to serve a further amended complaint wherein each plaintiff shall separately state and number the cause of each plaintiff in respect of the first four causes of action alleged in the amended and supplemental complaint as prayed for in the notice of motion dated July 11,1962 and as ordered by the court on July 30,1962. The prior motion was directed to an amended and supplemental complaint which contained four causes of action, the first of which was asserted on behalf of all plaintiffs against the moving defendants and the defendant Edna Manoville and the second, third and fourth causes were asserted on behalf of all the plaintiffs against the defendant Fifth Washington Square Owning Corporation. This pleading also contained a fifth cause of action asserted on behalf of all the plaintiffs against the defendant New York University.

It appears that the prior motion was decided on July 30,1962, the further amended complaint to be served within 20 days after publication of the order. The present pleading was served after decision, and the plaintiffs had not the right as a matter of course to serve an amended complaint save in the respects in which the service of an amended complaint was permitted and directed. While the present pleading undertakes to assert separate causes in fraud on behalf of each of the plaintiffs, it goes in addition far beyond the prior pleading and the leave of the court to amend.

Accordingly, the motion is granted dismissing the amended complaint verified August 20, 1962 for failure to comply with the order of July 30, 1962 and plaintiffs are directed to serve a pleading in compliance therewith within 20 days of service of a copy of this order with notice of entry and without prejudice to an application by the plaintiffs for leave otherwise to amend their complaint if they so desire.