Opinion
October 27, 1970
Order of the Supreme Court, Bronx County, entered on February 11, 1970, denying defendant's motion to dismiss the complaint for insufficiency, unanimously reversed, on the law and in the exercise of discretion, and the motion granted and the complaint dismissed; appellant shall recover of respondents $50 costs and disbursements of this appeal. Leave is granted to plaintiffs-respondents to serve an amended complaint upon payment of the costs and disbursements of this appeal within 20 days after service upon them by appellant of a copy of this order, with notice of entry thereon. While pleadings will be given a liberal construction (CPLR 3026; Foley v. D'Agostino, 21 A.D.2d 60), it is still necessary for a complaint to comply with the requirements of CPLR 3013 that a pleading shall be sufficiently particular to give the court and parties notice of the material elements of a cause of action. The order appealed from, although denying the motion to dismiss, nevertheless required that "plaintiff shall furnish a more definite statement to which defendant can properly respond." Instead of serving an amended complaint containing a more definite statement (see CPLR 3024 [a]), plaintiffs served a separate statement apart from the pleading — a wholly unauthorized practice. Nevertheless, we have examined the complaint and the statement, and in combination they are insufficient to comply with CPLR 3013, since nowhere is there a statement or allegation as to how the alleged accident occurred. Plaintiff will therefore be required, if so advised and upon compliance with the condition above mentioned, to serve an amended complaint accordingly.
Concur — Eager, J.P., Capozzoli, Markewich and Tilzer, JJ.