Caso v. Gotbaum

38 A.D.2d 955, 331 N.Y.S.2d 507, 80 L.R.R.M. (BNA) 2545, 1972 N.Y. App. Div. LEXIS 5102

Opinion

In an action for an an injunction and to recover compensatory and punitive damages on the ground of an alleged strike conducted by defendants in violation of article 14 of the Civil Service Law, defendants appeal, as limited by their joint brief, from so much of an order of the Supreme Court, Nassau County, dated August 5, 1971, as denied their separate cross motions to dismiss the complaint. Order reversed insofar as appealed from, on the law, without costs, and defendants’ cross motions to dismiss the complaint granted, with leave to plaintiffs to serve an amended complaint. Plaintiffs’ time within which to serve an amended complaint is extended until 3.0 days after service of the order to be made hereon, with notice of entry. In our opinion, the complaint is insufficient because plaintiffs’ allegations concerning defendants’ unlawful conduct are conclusor, Further, though neither defendants nor plaintiffs submitted affidavits in connection with the cross motions, Special Term impermissibly denied the latter motions by considering factual allegations contained in plaintiffs’ briefs and in the affidavits submitted by plaintiffs in support of the motion for a preliminary injunction (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3211.44). Hopkins, Acting P. J., Shapiro, Gulotta and Brennan, JJ., concur. [67 Misc 2d 205.]