Opinion
December 3, 1970 Republished
Order of the Supreme Court, New York County, entered on August 20, 1969, which on reargument adhered to a prior decision and granted defendant's motion to dismiss the amended complaint, unanimously modified, on the law and in the exercise of discretion, to the extent of directing that the dismissal of the amended complaint shall be without prejudice to the service of a further amended complaint if plaintiff is so advised, after plaintiff has obtained an examination pursuant to CPLR 3102 (subd. [c]); and, as so modified, the order is affirmed and the judgment entered January 29, 1970 upon said order is vacated, without costs and without disbursements. The defendant is entitled to know the specific dates and the amounts of the loans on which plaintiff relies, in order to determine its defenses. In this case, the plaintiff has professed on oral argument, and in her brief, that such information is presently unknown. Under these circumstances, and in order to assist plaintiff in framing a complaint, an examination pursuant to CPLR 3102 (subd. [c]) is permitted. (See Matter of Roland [ Deak], 10 A.D.2d 263; Woolf v. Reed, 19 A.D.2d 814; 3 Weinstein-Korn-Miller, pars. 3102.11, 3102.12, 3102.13, 3102.14.) The order of this court entered on November 10, 1970 [ 35 A.D.2d 790], is vacated. Settle order on notice making provision for the time, place and scope of examination pursuant to CPLR 3102 (subd. [c]).
Concur — McGivern, J.P., Markewich, McNally and Macken, JJ.