Embee Advice Establishment v. Holtzmann, Wise & Shepard

191 A.D.2d 194, 595 N.Y.S.2d 675

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about May 7, 1992, which denied defendant-appellant’s motion to dismiss the fourth and fifth causes of action of the complaint, unanimously affirmed, with costs.

This is a motion addressed to the sufficiency of the pleadings. Modern pleading rules focus upon whether the pleader has a cause of action, not whether he has properly stated one, and in making that determination, accompanying affidavits may be referred to for the limited purpose of remedying any defects in the pleadings (Barrows v Rozansky, 111 AD2d 105, 107). In this case, when the allegations of the complaint and the affidavits submitted in opposition to defendant-appellant’s motion to dismiss are read together, it is apparent that plaintiff has pleaded an adequate claim for relief pursuant to Judiciary Law § 487. To the extent that plaintiff’s claims are indefinite, a bill of particulars and discovery are defendant’s proper remedies (Daukas v Shearson, Hammill & Co., 26 AD2d 526). Concur — Murphy, J. P., Carro, Rosenberger and Ross, JJ.