Braten Apparel Corp. v. Bankers Trust Co.

Order, Supreme Court, New York County, entered December 12, 1977, unanimously modified, on the law and in the exercise of discretion, to the extent of vacating the second decretal paragraph thereof and, in its place, providing that defendant Bankers Trust Company’s motion to make the complaint more definite and certain pursuant to CPLR 3024 is granted with respect to the third cause of action of the complaint and otherwise denied, and, as so modified, affirmed, without costs and disbursements. Leave to appeal from that aspect of the order which denied defendant’s motion to make the complaint more definite and certain is granted, sua sponte, nunc pro tunc. Defendant Bankers Trust Company moved to dismiss the third cause of action on the ground of another action pending or in the alternative to have such cause made more definite and certain. Special Term denied the motion, thus implicitly denying the alternative relief requested. The verified complaint herein is patently deficient with respect to presenting a basis upon which this court can properly determine whether or not the claim asserted in the third cause of action was the subject of litigation in the bankruptcy proceeding involving plaintiff which was already pending when this lawsuit was commenced. The complaint is so brief that it is clear that the third cause of action must be made more definite and certain. Concur—Sandler, J. P., Sullivan, Lupiano, Yesawich and Bloom, JJ.