Carvel v. Davis

In a proceeding pursuant to CPLR article 77, inter alia, to remove Robert M. Davis and Mildred Arcadipane as trustees, Thomas Kornacki and Joan Kelly appeal from so much of an order of the Surrogate’s Court, Westchester County (Scarpino, S.), dated February 25, 2002, as denied those branches of their respective motions which were for summary judgment on their cross claims for trustee commissions earned from March 1, 1989, to January 1, 1990, and dismissed the cross claims as barred by the statute of limitations. Ordered that the order is affirmed insofar as appealed from, with costs. The appellants’ original answers did not give sufficient notice of the transactions or occurrences which provide the basis of the cross claims asserted in their amended answer, as required by CPLR 203 (f), in order to avoid dismissal based upon the expiration of the applicable statute of limitations (see MacDonald v Windfield Bus. Papers, 270 AD2d 399 [2000]; Boccone v Island Fed. Mtge. Corp., 261 AD2d 350 [1999]; 965 Coleman, Grasso & Zasada Appraisals v Coleman, 246 AD2d 893, 894 [1998]; Padua v Falow, 230 AD2d 834 [1996]). The vague demands in the “wherefore clauses” of the original answers for “such compensation to which this Court believes [the appellants to be entitled]” was insufficient to give notice of the present cross claims for payment of commissions owed (see Wilensky v JRB Mktg. & Opinion Research, 137 AD2d 520 [1988]; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3017.02). Florio, J.P., Feuerstein, Friedmann and Crane, JJ., concur.