Shea & Gould v. Miller

Appellate Division of the Supreme Court of New York

Shea & Gould v. Miller

194 A.D.2d 374, 598 N.Y.S.2d 263, 1993 N.Y. App. Div. LEXIS 5555

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 8, 1993

StatusPublished

This text of 194 A.D.2d 374 (Shea & Gould v. Miller) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shea & Gould v. Miller, 194 A.D.2d 374, 598 N.Y.S.2d 263, 1993 N.Y. App. Div. LEXIS 5555 (N.Y. Ct. App. 1993).

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Opinion

—Order, Supreme Court, New York County (Carol E. Huff, J.), entered June 17, 1992, which granted defendant’s motion pursuant to CPLR 3211 (a) (1) and (7) for dismissal of the complaint, unanimously reversed, on [375]*375the law, with costs and disbursements, the motion denied, and the complaint reinstated.

The order dismissed the complaint without prejudice to plaintiff’s right to replead against the estate, of which defendant served as coexecutor. The order further directed that any such action should be brought in the Surrogate’s Court pursuant to SCPA 2110.

It was alleged in the complaint that defendant had agreed to pay plaintiff’s fees and disbursements and that he had failed to do so. On a motion addressed to the facial sufficiency of the complaint, such an allegation must be deemed to be true (see, Cohn v Lionel Corp., 21 NY2d 559, 560). Thus, the complaint clearly states a proper cause of action and there is no restriction on plaintiff’s right to seek redress therefor in the Supreme Court. Concur—Sullivan, J. P., Ross, Kassal and Nardelli, JJ.

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—Order, Supreme Court, New York County (Carol E. Huff, J.), entered June 17, 1992, which granted defendant’s motion pursuant to CPLR 3211 (a) (1) and (7) for dismissal of the complaint, unanimously reversed, on [375]*375the law, with costs and disbursements, the motion denied, and the complaint reinstated.

The order dismissed the complaint without prejudice to plaintiff’s right to replead against the estate, of which defendant served as coexecutor. The order further directed that any such action should be brought in the Surrogate’s Court pursuant to SCPA 2110.

It was alleged in the complaint that defendant had agreed to pay plaintiff’s fees and disbursements and that he had failed to do so. On a motion addressed to the facial sufficiency of the complaint, such an allegation must be deemed to be true (see, Cohn v Lionel Corp., 21 NY2d 559, 560). Thus, the complaint clearly states a proper cause of action and there is no restriction on plaintiff’s right to seek redress therefor in the Supreme Court. Concur—Sullivan, J. P., Ross, Kassal and Nardelli, JJ.

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Bluebook (online)

194 A.D.2d 374, 598 N.Y.S.2d 263, 1993 N.Y. App. Div. LEXIS 5555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shea-gould-v-miller-nyappdiv-1993.

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