Personal Linen Supply Co. v. Ciampi

In an action to recover damages for breach of contract and to recover punitive damages for maliciously inducing such breach of contract, defendants appeal, pursuant to leave granted by the court below, from so much of an order of the Supreme Court, Nassau County, entered March 29, 1965 on reargument, as denied their motion to strike paragraphs “Twenty-Ninth” through “ Thirty-Third ” of plaintiff’s complaint. Order, insofar as appealed from, reversed, with $10 costs and disbursements, and motion granted. Defendants’ time to answer is extended until 20 days after the entry of the order hereon. In our opinion, the matter contained in the afore-mentioned paragraphs of the complaint is prejudicial, which is not disputed, and is unnecessarily included in the pleading (CPLR 3024, subd. [b]). Those paragraphs relate to separate and distinct transactions occurring at times too remote from each other and from the transaction in suit to suggest that they are part of one general scheme, and proof thereof would not be admissible at the trial (cf. Kelly v. Home Mut. Fire Ins. Co., 190 App. Div. 764, 766; Matter of Dale, 159 Misc. 578, 580-582, and cases there cited). Brennan, Acting P. J., Hill, Rabin and Hopkins, JJ., concur; Benjamin, J., not voting.