Opinion
February 18, 1971
Order, Supreme Court, New York County, entered September 30, 1970, unanimously modified, on the law, to strike the first paragraph of the first affirmative defense and otherwise deny the motion, and as so modified affirmed, without costs and without disbursements. The order under appeal involves departures from proper practice by both sides. Originally plaintiff moved for summary judgment. Upon denial of his motion he sought reargument and in this application moved to strike the first affirmative defense. Reargument is never a vehicle for seeking new forms of relief ( Simpson v. Loehmann, 21 N.Y.2d 990; Tripp, a Guide to Motion Practice [revd. ed.], § 11). However, as defendant has addressed itself to the merits, we will, to avoid duplication of effort, also consider them. The first affirmative defense really contains two defenses. The first is that plaintiff, in order to induce defendant to enter into the contract, misrepresented his capabilities. The second defense is that he was incompetent and discharged for that reason. Technically, there is no provision for dismissal of part of a defense. CPLR 3211 (subd. b) provides only for dismissal of a defense. Where, as here, two defenses are pleaded together, it would be unnecessarily cumbersome for a plaintiff to be required first to move to have the defenses stated separately and then move against the one that had no merit. Here the defense of misrepresentation was entirely unsupported. It would be manifestly unfair to strike the whole defense, as incompetency as a ground for discharge must be pleaded ( Rosbach v. Sackett Wilhelms Co., 134 App. Div. 130; Linton v. Unexcelled Fireworks, 124 N.Y. 533) and the allegations were sufficiently supported to raise an issue.
Concur — Nunez, J.P., Kupferman, McNally and Steuer, JJ.