Golden v. Wiston Corp.

29 A.D.2d 1048, 289 N.Y.S.2d 888, 1968 N.Y. App. Div. LEXIS 4269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1968
• Status: Published

Opinion

Order, insofar as it dismisses paragraph 14 of the complaint and directs service of an amended pleading, unanimously .reversed, with costs, and motion to dismiss the complaint denied. Memorandum: Respondent moved to dismiss the complaint for failure to state a cause of action (CPLR 3211, subd. [a], par. 7). We agree with the conclusion of Special Term that the pleading states a sufficient cause of action in trespass. It follows that the court erred in dismissing as legally insufficient the cause of action set forth in paragraph 14 of the complaint. If such a motion to dismiss is addressed, as here, to the pleading as a whole, it should be denied in its entirety if any cause of action pleaded is sufficient without consideration of the sufficiency of any other pleaded cause of action. (6 Carmody-Wait 2d, New York Practice, § 38:2; Richardson v. Coy, 28 A D 2d 640.) (Appeals from order of Onondaga Special Term granting, in part, motion to dismiss complaint in action for trespass.) Present — Williams, P. J., Bastow, Goldman, Witmer and Henry, JJ.