Kelly v. Bank of Buffalo

• Decision Date: 19 June 1969
• Citation: Kelly v. Bank of Buffalo, 302 N.Y.S.2d 60, 32 A.D.2d 875 (N.Y. App. Div. 1969)
• Parties: James J. KELLY, Appellant, v. BANK OF BUFFALO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 60

302 N.Y.S.2d 60

32 A.D.2d 875

James J. KELLY, Appellant, v.BANK OF BUFFALO, Respondent.

Supreme Court, Appellate Division, Fourth Department.

June 19, 1969.

Desmond & Drury, Edward J. Desmond, Buffalo, for appellant.

Saperston, Wiltse, Duke, Day & Wilson, Herbert J. Lustig, Buffalo, for respondent.

Before DEL VECCHIO, J.P., and WITMER, GABRIELLI, BASTOW, and HENRY, JJ.

MEMORANDUM.

The motion to dismiss this complaint was made pursuant to CPLR 3211(a), par. 7, upon the ground that it failed to state a cause of action.Although the court might have treated the motion as one for summary judgment (CPLR 3211(c)), there is nothing in the record to indicate that the court did in fact choose to treat it as such.On the contrary, both the order appealed from and the decision of the court state that the complaint is dismissed for failure to state a cause of action and the notice of appeal describes the appeal as taken 'from an order dismissing the complaint for failure to state a cause of action against the defendant'.We recognize, however, that on such a motion the court is no longer limited to a consideration of the pleading itself but may consider extrinsic matter submitted by the parties in disposing of the motion.(4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3211.43;Hamilton Printing Co., Inc. v. Ernest Payne Corporation, 26 A.D.2d 876, 273 N.Y.S.2d 929.)The inquiry is whether the pleader has a cause of action rather than whether he has properly stated one.(6 Carmody-Wait 2d, New York Practice, Section 38:19.)Tested by this standard, we think it was error to dismiss the complaint.Factual issues were presented by the affidavits and other evidence submitted by the parties on the motion which precluded a determination before trial that defendant had fully performed the...