Allalemdjian v. Trotta

The plaintiff has moved on affidavit to strike from the defendant’s answer the second, third and fourth defenses. The notice of motion states that it is made pursuant to rule 103 of the Buies of Civil Practice on the ground that these defenses are frivolous and irrelevant. This rule permits the use of affidavits to determine whether matter in a pleading is sham; since the defenses here are not assailed *977as sham, the affidavits submitted by both parties are disregarded. The defenses are self-evidently neither irrelevant nor frivolous. However, the briefs disclose that the true ground of the…