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NEIL WARNER v. LAWRENCE LEVINSON (12/01/92)

entered: December 1, 1992.

NEIL WARNER, ET AL., PLAINTIFFS-RESPONDENTS,
v.
LAWRENCE LEVINSON, ET AL., DEFENDANTS-APPELLANTS.



Sullivan, J.p., Milonas, Ellerin, Kassal, JJ.

Orders, Supreme Court, New York County (Carol E. Huff, J.), entered October 9, 1991 and April 9, 1992, which, inter alia, denied defendants' cross motion for summary judgment, dismissed certain of defendants' affirmative defenses and counterclaims, dismissed a third-party complaint, and imposed sanctions against defendants' counsel, and which, inter alia, denied defendants' motion for leave to renew and reargue the prior order for leave to serve amended pleadings, and vacatur of the sanctions, unanimously affirmed, with separate bills of costs payable to plaintiff.

The pleadings dismissed by the court either failed to particularize the transactions and occurrences and the material elements of the causes of action (CPLR 3013), failed to state a valid cause of action (CPLR 3211[a][7], or were covered by the general denials in defendants' answer (Faroll v. Nat'l. Sur. Corp., 13 A.D.2d 952). Dismissal of the third-party complaint was proper inasmuch as defendants attempted to serve such on a party to the main action (Russell v. City of Troy, 76 A.D.2d 973), and on a party whose liability could not arise from the liability asserted against the third-party plaintiffs in the main action (BBIG Realty Corp. v. Ginsberg, 111 A.D.2d 91, 93). Sanctions were properly imposed on defendants' counsel's frivolous conduct in bringing nineteen affirmative defenses, eight counterclaims and a third-party complaint that clearly lacked merit. Finally, defendants were properly denied leave to amend their answer, counterclaims and third-party complaint in that the proposed submissions were nothing more than a repackaging of the prior deficient pleadings (see Norman v. Ferrara, 107 A.D.2d 739, 740).

ENTERED: November 19, 1992

19921201

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