180 Tenants Corp. v. Ungar

The landlord’s motion to strike the tenants’ 1st, 2nd, 3rd, 4th, 5th and 6th partial defenses and 1st and 2nd counterclaims. The underlying facts are stated in a companion motion decided herewith. The landlord’s motion is defective as it does not state the basis thereof, except the naked conclusion. The grounds are required to be stated (Buies Civ. Prac., rule 109; Vilter Mfg. Co. v. Dairymen’s League Co-op. Assn., 84 N. Y. S. 2d 445, 447). Since this appears to be one of the first motions to be decided under the new practice, the court denies the motion without prejudice to renew, if landlord be so advised, upon proper papers and with due regard for the new Civil Practice Law and Buies.

If landlord renews this motion, then this court would hold that the new Civil Practice Law and Buies, effective September 1, 1963, is applicable to all pending judicial proceedings (art. 1, § 101) and must therefore be here applied (UPLB, § 10003). Subdivision (b) of rule 3211 of article 32 governs this motion, seeking to dismiss one or more defenses on the ground that a defense is not stated. Subdivision (e) of rule 3211 provides that when a motion is made under subdivision (b) of rule 3211, if the opposing party, the tenants herein, desire leave to replead in event the motion be granted, they shall so state in their opposing papers and set forth therein evidence that could properly be considered on a summary judgment motion to support the new pleading. Leave to replead shall not be granted unless the court is satisfied good grounds exist to support the cause or defense. This new practice establishes a rule of finality. (See Practice Commentary and Legislative Studies and Beports.)