Chock Full of Power Gasoline Corp. v. American Oil Co. , 40 A.D.2d 842 ( 1972 )

In an action for judgment declaring, inter alia, that plaintiffs had not defaulted under the terms of an extension and modification agreement concerning certain mortgages assumed by the corporate plaintiff, plaintiffs appeal, as limited by their briefs, from so much of an order of the Supreme Court, Nassau County, dated January 14, 1972, as denied the portions of plaintiffs' motion which were (1) to strike defendant’s second and third affirmative defenses and (2) for summary judgment. (The remainder of the motion, which was granted, was to strike defendant’s first defense.) Order-modified by inserting therein, immediately before the sentence denying the motion “ in all other respects ”, the following: “ The second affirmative defense is also struck.” As so modified, order affirmed insofar as appealed from, without costs. In our opinion triable issues exist with respect to the execution, meaning and performance of the extension and modification agreement) The second affirmative defense alleges that -the action should be dismissed because of nonjoinder of parties having or claiming to have rights which might be affected by a judgment. We find that there are no parties who would be or are so situated (cf. Matter of Castaways Motel v. Schuyler, 24 N Y 2d 120, 121) and defendant has not stated the nature of the rights which it alleges will be affected. The second -defense must therefore be struck. Hopkins, Acting P. J., Munder, Shapiro, Christ and Brennan, JJ., concur.