General

Anthony J. Infusino, Respondent, v. John Maggio, Appellant

24 A.D.2d 536·New York Supreme Court, Appellate Division·1965·NY

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Opinion

Anthony J. Infusino, Respondent, v. John Maggio, Appellant. [MAJORITY] Order and judgment entered thereon, unanimously reversed, with costs and motion denied, with $10 costs, with leave to defendant to serve an amended answer within 20 days after service of the order to be entered herein. Memorandum: Issues of fact are presented that require a trial. Moreover, technical defects in the pleading of an adversary are not available to a plaintiff upon an application for summary judgment. (Curry v. MacKenzie, 239 N. Y. 267, 272; Werfel v. Zivnostenska Banka, 287 N. Y. 91, 93.) Lastly, in the exercise of a proper discretion, Special Term, inasmuch as it was permitting plaintiff to substantially amend his complaint, should have granted leave to defendant to serve an amended answer thereto. (Appeal from order of Oneida Special Term, granting plaintiff’s motion for summary judgment.) Present — Williams, P. J., Bastow, Henry and Del Vecchio, JJ.