Weiss v. Fifth Washington Square Owning Corp.

Defendant New York University moves for an order pursuant to rule 103 of the Rules of Civil Practice striking from the amended complaint as sham and frivolous, unnecessary and prejudicial the allegations of paragraph 35 and so much of the prayer for relief as demands judgment in favor of each of the plaintiffs against the moving defendant in the sum of $500,000 and for an order limiting the damage alleged to $20,000. The amended complaint was served following the order made on July 30, 1962 which was directed to the amended supplemental complaint. Therein a fifth cause of action was stated against this moving defendant on behalf of all of the plaintiffs in which the plaintiffs alleged that they sustained damage in the total sum of $20,000 and further that plaintiffs are entitled to punitive damages in the sum of $2,000,000.

Upon a prior application made pursuant to rulo 103 an order was made dated July 25, 1962 striking out the request for punitive damage since no support thereof was found in the complaint. That disposition required the settlement of an order. *101The order was noticed for settlement on August 30,1962 and an order has not yet been signed. The amended complaint was served on August 21, 1962 after decision and after the time for the service of an amended pleading as of right had expired.

In the present amended pleading, plaintiffs allege in the cause asserted against this moving defendant that the latter acted maliciously, not alleged in the prior pleading, and compensatory damage is sought in the sum of $500,000. No authority was granted to alter the pleading in such manner and accordingly as to the moving defendant the amended pleading is not in compliance with the decision of July 25,1962.

The motion is granted, and plaintiff is directed to serve an amended complaint within 20 days from service of a copy of this order with notice of entry.