INFUSINO v. MAGGIO

Order and judgment entered thereon, unanimously reversed, with costs and motion denied, with $10 costs, with leave to defendant to serve an amended answer within 20 days after service of the order to be entered herein. Memorandum: Issues of fact are presented that require a trial. Moreover, technical defects in the pleading of an adversary are not available to a plaintiff upon an application for summary judgment. ( Curry v. MacKenzie, 239 N.Y. 267, 272; Werfel v. Zivnostenska Banka, 287 N.Y. 91, 93.) Lastly, in the exercise of a proper discretion, Special Term, inasmuch as it was permitting plaintiff to substantially amend his complaint, should have granted leave to defendant to serve an amended answer thereto.