From Casetext: Smarter Legal Research

Vice v. Kinnear

Appellate Division of the Supreme Court of New York, Third Department
Dec 29, 1961
15 A.D.2d 619 (N.Y. App. Div. 1961)

Opinion

December 29, 1961


Appeal from an order of Special Term of the Supreme Court, St. Lawrence County, which denied a motion by plaintiff for an order pursuant to rule 103 of the Rules of Civil Practice striking the allegations contained in paragraphs 10 to 23, both inclusive, of the answer upon the grounds that they are sham, frivolous and may tend to prejudice, embarrass or delay the fair trial of the action. The complaint alleges causes of action for personal injuries and conscious pain and suffering and for wrongful death resulting from an automobile collision which occurred on August 17, 1957 in the Province of Quebec, Canada. On the occasions of her injury and subsequent death, plaintiff's intestate resided in the State of New York. The action was commenced by the service of a summons on defendants, also residents of this State, on February 11, 1959. The paragraphs sought to be stricken comprise separate defenses which allege that the causes of action are barred by the one-year Statutes of Limitations applicable to statutory actions under the laws of Quebec. Motions to strike under rule 103 are not favored, rest in the sound discretion of the court and will be denied unless it clearly appears that the allegations attacked have no posssible bearing on the subject matter of the litigation. ( Giessler v. Accurate Brass Co., 271 App. Div. 980, motion for reargument and leave to appeal denied 271 App. Div. 1017, motion for leave to appeal dismissed 296 N.Y. 1003; Zirn v. Bradley, 269 App. Div. 961; Dodge v. Campbell, 223 App. Div. 471, 476; Goodrow v. Press Co., 233 App. Div. 41, 45; Gerseta Corp. v. Silk Assn. of America, 220 App. Div. 302, 305.) In essence Special Term determined that the record provided an insufficient predicate to resolve the issue whether the periods of limitation relied on are procedural and governed by the law of the forum, as appellant contends, or constitute conditions precedent to the right to maintain the causes of action created by the foreign statutes, which is defendants' thesis, and indicated that professional proof of the pertinent rulings of the courts of Quebec would be proper and necessary on the trial. ( Matter of McDougald, 272 App. Div. 176, 179.) The parts of the pleading under review are neither sham nor frivolous. ( Santasiero v. Briggs, 278 App. Div. 15, 21.) Their presence in the answer will create no prejudice and will not tend to embarrass or delay the fair trial of the action. ( Solomon v. La Guardia, 267 App. Div. 435, motion for reargument and leave to appeal denied 267 App. Div. 957.) Order affirmed, with $10 costs. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur.


Summaries of

Vice v. Kinnear

Appellate Division of the Supreme Court of New York, Third Department
Dec 29, 1961
15 A.D.2d 619 (N.Y. App. Div. 1961)
Case details for

Vice v. Kinnear

Case Details

Full title:HOWARD J. VICE, as Administrator of the Estate of GLADYS P. VICE…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 29, 1961

Citations

15 A.D.2d 619 (N.Y. App. Div. 1961)

Citing Cases

Shibetti v. Z Rest., Diner & Lounge

CPLR 3024 (b) permits the court, upon motion, to strike any "scandalous or prejudicial matter unnecessarily…

Pisula v. Roman Catholic Archdiocese of N.Y.

Motions to strike scandalous or prejudicial matter from pleadings are generally disfavored (see Riesenberger…