Underhill Construction Corp. v. Stewart M. Muller Construction Co.

53 A.D.2d 593 | N.Y. App. Div. | 1976

Order, Supreme Court, New York County, entered March 9, 1976, unanimously affirmed insofar as appealed from, without costs and without disbursements. In this action based on a claim of breach of a trust created under article 3-A of the Lien Law, defendants-appellants moved separately to compel service of an amended complaint, more definite and certain (CPLR 3024) in respect of plaintiff-respondent’s allegations of status to maintain the action, as well as the allegations of breach of trust (CPLR 3016, subd [b]). The relief was granted, but coupled therewith was the right accorded plaintiff, if information as to particulars should be lacking, to pursue discovery. Plaintiff’s papers are not a model of what is required to secure discovery, but sufficient is apparent, particularly in the manner in which the complaint is drawn, to be susceptible of an inference that knowledge is lacking as to existence of other claimants, as well as participation of both defendants in claimed diversion of assets. There is no showing, however, of lack of knowledge as to plaintiff’s own status. Technically speaking, plaintiff could be required to make a proper motion for discovery, but to compel this to be done would be to waste time needlessly. Discovery may proceed within the limits indicated herein and proper objection at Special Term Part II, timely made, should assure that the discovery will not go beyond appropriate limits. Concur— Markewich, J. P., Murphy, Lupiano, Capozzoli and Lane, JJ.