SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 6, 1968
MELVIN A. SCHACHTER, RESPONDENT,
MASSACHUSETTS PROTECTIVE ASSOCIATION INCORPORATED, APPELLANT
Beldock, P. J., Christ, Rabin, Benjamin and Martuscello, JJ., concur.
In our opinion, plaintiff's amended complaint sets forth allegations which involve evidentiary matter and which, at this posture of the proceedings, are: (a) unnecessary for the complaint's sufficiency, (b) prejudicial and (c) irrelevant and incompetent predicates for any determination of the primary question whether plaintiff is totally disabled, within the meaning of the policies, for the period for which payments are claimed; and show little potentiality for relevancy, competency or admissibility at the trial. They are accordingly prejudicial and unnecessarily inserted within the prohibitive purview of CPLR 3024 (subd. [b] ). It is our view that, on balance, it would be more in keeping with sound discretion and the interests of justice to preserve defendant's right to a fair trial by not permitting plaintiff to invoke the liberal rule with respect to pleadings and allege the aforesaid prejudicial unnecessary matter under the guise of relevancy, which we do not find at this posture of the proceedings. We make no determination as to the relevancy or irrelevancy of such evidentiary matter at the trial, predicated on what may be adduced thereat. Nor is it intended, by striking these allegations, that, if said evidentiary matter should become relevant at the trial, they cannot be proved without being specifically averred in the amended complaint.
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