TURNER CONSTR v. SEABOARD


98 A.D.2d 88 (1983)

Turner Construction Company, Appellant, v. Seaboard Surety Company, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

December 20, 1983


Attorney(s) appearing for the Case

Robert M. Callagy of counsel (Ronald R. Papa with him on the brief; Satterlee & Stephens, attorneys), for respondent.

Bruce L. Phillips of counsel (K. Gerard Amadio with him on the brief; Sacks, Montgomery, Pastore & Levine, P. C., and Venzie, Phillips & Warshawer, attorneys), for appellant.

SANDLER, J. P., BLOOM and FEIN, JJ., concur with SILVERMAN, J.; ALEXANDER, J., concurs in result only.


SILVERMAN, J.

This is an appeal by plaintiff from so much of an order of the Supreme Court, Special Term, as denied plaintiff's motion pursuant to CPLR 3211 (subd [a]) to dismiss the second, third and fifth counterclaims in defendant's answer for failure to state a cause of action.

Plaintiff does not pursue its appeal as to the fifth counterclaim, contending that that has been rendered moot by an amended answer which fails to reallege that counterclaim...

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