Domestic Finance Corp. v. Milner , 59 Misc. 2d 867 ( 1969 )

Richard J. Cardamone, J.

This is a motion to preclude brought by the defendant sued on a promissory note executed and delivered to the plaintiff on April 16, 1968 in the amount of $792 including interest.

This court has carefully reviewed the complaint which consists of 30 separate paragraphs, including a cause of action for a breach of contract for the failure to pay the note when due; an action for false financial statement and fraud; and another action for conversion. The demand for the bill of particulars consisted of 28 separate demands, a bill of particulars which was alleged to be responsive hut which defendant refused as being unresponsive, and, finally, an affidavit 'by plaintiff’s attorney consisting of 11 typewritten pages, which is a complete rehash of the bill of particulars.

CPLR 107 (L. 1967, ch. 646) provides that the Judicial Conference of the State of New York shall have the power to adopt, amend and rescind an appendix of forms. Forms adopted under this section shall be deemed to be sufficient under the CPLB and will be indicative of the simplicity and brevity of statement which the Civil Practice Law and Buies contemplate. Form 5 thereof sets forth a complaint on a.promissory note consisting of 2 paragraphs and a wherefore clause. The whole complaint consists of 12 lines and is stated on one half of a typewritten page. (22 NYCRR Appendix A-2, Form 5.)

In view of the prolix an inordinate length of the complaint in this matter, which substantially defeats the general purpose of CPLR 107, a preclusion order as against the entire complaint will be granted, without prejudice to the plaintiff to commence a new action on this note in the approved form.