Mirage Rest., Inc. v. Majestic Chevrolet, Inc.

In an action, inter alia, to recover damages for breach of contract, the plaintiff and third-party defendant Howard Shapiro, doing business as Cherry’s, appeal from an order of the Supreme Court, Nassau County, dated November 13, 1979, which denied their motion for an order requiring defendants and third-party plaintiffs to serve a more definite statement of their counterclaims and third-party complaint (see CPLR 3024). Permission for the taking of this appeal is hereby granted by Mr. Justice Titone (see CPLR 5701, subd [c]). Order affirmed, with $50 costs and disbursements. Where all the parties were before the court, defendants’ referring to their third-party causes of action against the third-party defendants as a counterclaim instead of a third-party complaint could be disregarded and the merits determined (cf. Bollinger v Borden, 30 AD2d 607). We also believe that the pleadings set forth in the counterclaims and third-party complaint against plaintiff and the third-party defendant-appellant, respectively, are not so vague and ambiguous that they are unable to frame a response thereto (see CPLR 3024, subd [a]). Hopkins, J. P., Damiani, Titone and Mangano, JJ., concur.