Ray v. Ray

34 A.D.2d 517, 308 N.Y.S.2d 407, 1970 N.Y. App. Div. LEXIS 5352

Opinion

Order, entered August 20, 1969, unanimously reversed, on the law and the facts, with $30 costs and disbursements to the appellant, and defendants’ motion to vacate plaintiff’s notice of examination denied, with costs. On this motion, the sufficiency of the complaint, purporting to allege three separate causes of action, including a stockholder’s derivative cause, is to be determined on the basis of the allegations of the complaint. Without a proper and adequate discussion of the question of such sufficiency or the other questions germane to this appeal, the defendants have devoted about 20 pages of a 23 page brief to a recitation of facts dehors the record on appeal. This appeal was brought on for argument on the basis of a properly certified record on appeal and extrinsic facts may not be considered, nor may facts other than those established by affidavit, documents or records recited in the order appealed from. (See Baraeeno v. Piscopo, 16 A D 2d 735.) Inasmuch as the complaint is deemed sufficient as to one or more of the causes stated therein and there being no proper showing warranting a denial of pretrial disclosure proceedings, the plaintiff is entitled to proceed with an examination as proposed in the notice served. Concur — Eager, J. P., Capozzoli, McG-ivern and Nunez, JJ.