101 A.D.2d 971 | N.Y. App. Div. | 1984
— Appeal from an order of the Supreme Court at Special Term (Hughes, J.), entered June 27, 1983 in Schenectady County, which granted defendant’s motion to dismiss the complaint and to strike plaintiffs’ action from the Trial Calendar. HThe pertinent procedural history of the instant matter is as follows: an action was commenced by plaintiffs in 1979, allegedly arising out of a landlord-tenant relationship between defendant and plaintiff Deacon’s Bench, Inc. By order dated October 13,1979, Special Term dismissed plaintiffs’ fifth cause of action for legal insufficiency and lack of capacity to sue (CPLR 3211, subd [a], pars 3, 7), and dismissed their first, second and third causes of action on the ground that they were so vague and ambiguous that defendant could not reasonably be required to frame a response (CPLR 3024, subd [a]), with leave to replead within 30 days. In November, 1979, plaintiffs served a second, amended complaint to which defendant addressed another motion to dismiss. By order dated August 28,1980, Special Term dismissed the third and fifth causes of action in that complaint for legal insufficiency and conditionally dismissed the second cause of action, again because of its vagueness and ambiguity. The third and fifth causes of action were dismissed with prejudice, but leave was granted to replead the other dismissed cause of action within 30 days. Special Term held in its decision, however, that plaintiffs’ first cause of action was legally sufficient. Initially, plaintiffs did not elect to replead, but instead took an appeal from the order of dismissal, which was never perfected and was ultimately dismissed. On April 30, 1981, plaintiffs served a third, amended complaint and, again, defendant moved to dismiss. Special Term granted defendant’s motion on the ground that plaintiffs had no right to serve