Klebanow v. Carrington

Order entered October 30, 1964 denying defendant’s motion to dismiss the complaint on the ground that the complaint fails to state a cause of action, unanimously affirmed, with $30 costs and disbursements to respondent. The motion to dismiss this complaint was made pursuant to CPLR 3211 (subd. [a], par. 7). Affidavits were submitted by both sides. While the court, in passing on this motion, could have treated it as one for summary judgment (CPLR 3211, subd. [c]) there is nothing in this record which enables us to determine whether the court did choose to treat it as such. And, indeed, the appellant’s notice of appeal states that appeal is taken from the order of “ October 30, 1964 denying defendants’ motion to dismiss the complaint against him for insufficiency”. Accordingly, we review this order on the basis that the underlying motion was addressed solely to the sufficiency of the complaint and that it was so treated by Special Term. Therefore, we need not consider what result would in fact obtain had this been a motion for summary judgment. Concur — Breitel, J. P., Rabin, Valente, Stevens and Eager, JJ.