Opinion
December 10, 1964
Appeal from the Oneida Special Term.
Present — Williams, P.J., Goldman, Henry, Noonan and Del Vecchio, JJ.
Order insofar as it grants the motion to strike the denials in the answer unanimously reversed and the motion in that respect denied and otherwise order affirmed, with costs to plaintiff-respondent. Memorandum: The motion was made under CPLR 3211 (subd. b). That section provides that a party may move for judgment dismissing one or more defenses on the ground that a defense is not stated. Actually the case was presented to the court as a motion to strike on the ground of sham, and Special Term so treated it. This was error, because there is no longer a motion to stirke as sham under the CPLR. (First Preliminary Report of the Advisory Committee on Practice and Procedure, p. 76; 3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3024.10.) The claims of sham were asserted against the denials in the answer as distinguished from the affirmative defense. As to the portion of the motion directed to the affirmative defense, that was proper under CPLR 3211 (subd. b), but inasmuch as the affirmative defense sets up no facts that are sufficient in law as against this plaintiff, the motion in that respect should have been granted.