39 A.D.2d 869 | N.Y. App. Div. | 1972
Order of Appellate Term, First Department, entered on January 31, 1972, affirming an order of the Civil Court, entered on June 21, 1971, granting defendant’s cross motion to dismiss the complaint and denying plaintiff’s motion to preclude the defendant for failure to serve a bill of particulars with reference to affirmative defenses and to strike defendant’s answers for failure to appear at examinations before trial, unanimously reversed, on the law, for the reasons stated in the dissenting opinion of Mr. Justice Lupiano at the Appellate Term. The order of the Civil Court is likewise reversed, on the law, the cross motion denied and the motions in chief remitted to the Civil Court for determination. Appellant shall recover of respondent $50 costs and disbursements of this appeal. Concur — McGivern, J. P. Kupferman, Murphy, McNally and Eager, JJ. [70 Misc 2d 898.]