Keller v. Barry

Appellate Division of the Supreme Court of New York

Keller v. Barry

73 A.D.2d 611, 422 N.Y.S.2d 449, 1979 N.Y. App. Div. LEXIS 14412

Appellate Division of the Supreme Court of the State of New York·Decided December 10, 1979·Published·Cited by 2 cases

Opinion

— In an action to recover damages, inter alia, for legal malpractice, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated November 6, 1978, which granted defendant’s motion to dismiss the complaint for failure to state a cause of action. Order reversed, with $50 costs and disbursements, motion to dismiss denied and complaint reinstated. The complaint is sufficient on its face. The allegations contained in the affirmation submitted on behalf of the defendant’s motion to dismiss could not be considered unless the court treated the motion as one for summary judgment (see Rovello v Oroñno Realty Co., 40 NY2d 633). Mollen, P. J., Hopkins, O’Connor and Lazer, JJ., concur.

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— In an action to recover damages, inter alia, for legal malpractice, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated November 6, 1978, which granted defendant’s motion to dismiss the complaint for failure to state a cause of action. Order reversed, with $50 costs and disbursements, motion to dismiss denied and complaint reinstated. The complaint is sufficient on its face. The allegations contained in the affirmation submitted on behalf of the defendant’s motion to dismiss could not be considered unless the court treated the motion as one for summary judgment (see Rovello v Oroñno Realty Co., 40 NY2d 633). Mollen, P. J., Hopkins, O’Connor and Lazer, JJ., concur.

Keller v. Barry, 73 A.D.2d 611, 422 N.Y.S.2d 449, 1979 N.Y. App. Div. LEXIS 14412 (N.Y. Ct. App. 1979).

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