[Download] "Lourdes Catli v. Arthur Lindenman Et Al." by Supreme Court of New York ~ Book PDF Kindle ePub Free
eBook details
- Title: Lourdes Catli v. Arthur Lindenman Et Al.
- Author : Supreme Court of New York
- Release Date : January 30, 1972
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 63 KB
Description
The time within which defendant Shepard Lindenman may answer the complaint is extended to 20 days after entry of the order to be made hereon. The complaint, insofar as it concerned defendant Shepard Lindenman, alleged that the infant plaintiff was injured on July 8, 1970 while a passenger on a motorcycle driven by that defendants son, defendant Arthur Lindenman, when the motorcycle was involved in a collision on the Long Island Expressway with a vehicle owned and operated by defendant Darmendo; that at the time of the accident the son was operating the motorcycle under a learners permit issued by the State of New Jersey; that the provisions of the permit required the holder to operate the motorcycle at all times under the supervision and immediate presence of a fully licensed motorcycle operator, who in this case was defendant Shepard Lindenman; that the latters duties included the duty to prohibit his son from operating the motorcycle outside of New Jersey or within New York; and that the accident and injuries to the infant plaintiff were caused by defendant Shepard Lindenmans failure to perform his required duties as supervisory operator and his negligence in failing and omitting to take proper and suitable precautions for the infant plaintiffs safety. The motion to dismiss was made pursuant to CPLR 3211 (subd. [a], par. 7), which allows such a motion on the ground that the pleading fails to state a cause of action. The sufficiency of a pleading to state a cause of action will generally depend upon whether or not there was substantial compliance with CPLR 3013 (Foley v. DAgostino, 21 A.D.2d 60, 62). That section requires that statements in a pleading be sufficiently particular to give the court and parties notice of the transactions or occurrences intended to be proved and the material elements of each cause of action. So, generally speaking, "Pleadings should not be dismissed or ordered amended unless the allegations therein are not sufficiently particular to apprise the court and parties of the subject matter of the controversy" (3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3013.03). Furthermore, as noted in Foley v. DAgostino (supra, pp. 65-66), every pleading question should be approached in the light of the CPLR enactment (CPLR 3026) that pleadings "shall be liberally construed." and that "Defects shall be ignored if a substantial right of a party is not prejudiced." Thus, the burden is placed upon one who attacks a pleading for deficiencies in its allegations to show that he is prejudiced. The test of prejudice is to be given primary emphasis. "Thereby, we would invariably disregard pleading irregularities, defects or omissions which are not such as to reasonably mislead one as to the identity of the transactions or occurrences sought to be litigated or as to the nature and elements of the alleged cause or defense. If the irregularity, defect or omission represents an inherent deficiency known by the adverse party to bar the pleaders right to recover * * * rather than a mere pleading error, then the adverse party would be better advised to proceed under 3211 or 3212 upon affidavits or other proofs to secure an immediate determination on the merits" (Foley v. DAgostino, supra, p. 66). The pleadings at bar satisfy the test of particularity. Defendant Shepard Lindenman has been apprised of the occurrence and the theory upon which plaintiffs seek to hold him liable. Whether the proof will support plaintiffs is another story. In granting the motion to dismiss, Special Term [40 A.D.2d 714 Page 716]