Habiby v. Habiby

Order, entered on September 29, 1964, unanimously modified, on the law and in the exercise of discretion, with $30 costs and disbursements to the appellant, and the motion is granted to the extent of striking items “ 3 ”, “ 4 ” and “ 5 ” of the prayer for relief in the plaintiff’s reply, with leave, however, for the plaintiff to apply for permission to serve an amended complaint setting forth in such amended complaint a cause of action for separation. Prior to the enactment of CPLR 3011 the law was clear that a counterclaim could not be interposed in a reply (see Swertz v. Swertz, 28 Mise 2d 904 and eases cited ■therein). There is nothing in the language of CPLR 3011 that mandates a ’departure from that rule, nor does that language indicate any such intention on the part of the Legislature. (See 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3019.05.) Accordingly, the dictates of an orderly and efficient disposition of litigation requires the continuance of the practice as heretofore followed. Concur — Breitel, J. P., Rabin, Valente, Stevens and Staley, JJ.