Connelly v. American East India Corp.

Order, Supreme Court,. New York County, entered December 14, 1976, denying plaintiff’s motion for leave to serve an amended complaint, unanimously affirmed, without costs and without disbursements, and without prejudice to an application for leave to replead at Special Term. In an order dated June 18, 1976, Justice Tierney granted the defendant’s motion to dismiss the original complaint for insufficiency with leave granted to the plaintiff to replead. Justice Rosenberg, in an order dated August 31, 1976, denied plaintiff’s motion to serve an amended complaint with leave to the plaintiff to renew such motion upon proper papers that included the original complaint. In the instant order, entered December 14, 1976, Justice Rosenberg denied the renewed motion on the ground that there was no substantive difference between the original and the amended complaints. For several years, the plaintiff served as defendant’s president. Upon plaintiffs retirement in 1974, three pending lawsuits, in which the defendant was involved, were assigned to him. The proceeds of the lawsuits were to be for the account of Employment Counsellors, Inc., a corporation owned by the plaintiff. After one of the lawsuits was settled, a dispute arose between the parties as to whether the.entire settlement was to be paid directly to the *519plaintiff or whether the legal fees in that proceeding were to be deducted before distribution was made. Justices Tierney and Rosenberg correctly found that the original and amended complaints did not contain a clear and concise statement of the underlying facts (CPLR 3014). However, from what can be gleaned from the record, the plaintiff may well be able to frame an .intelligible complaint based upon breach of contract. Therefore, while affirming, we do so without prejudice to plaintiff’s right to make application, at Special Term, upon a proper evidentiary showing, for leave to serve a properly drawn and a comprehensible complaint. Concur—Murphy, P. J., Birns, Silverman and Capozzoli, JJ.