Town of Penfield v. Baker Commodities, Inc.

Appellate Division of the Supreme Court of New York

Town of Penfield v. Baker Commodities, Inc.

138 A.D.2d 953, 526 N.Y.S.2d 286, 1988 N.Y. App. Div. LEXIS 2653

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

DecidedMarch 4, 1988

StatusPublished

Cited by1 cases

This text of 138 A.D.2d 953 (Town of Penfield v. Baker Commodities, Inc.) 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

Town of Penfield v. Baker Commodities, Inc., 138 A.D.2d 953, 526 N.Y.S.2d 286, 1988 N.Y. App. Div. LEXIS 2653 (N.Y. Ct. App. 1988).

Pincite

Opinion

Order affirmed without costs. All concur, Callahan, J., not participating. Memorandum: Defendant moved for dismissal of the complaint pursuant to CPLR 3211. Plaintiff expressly limited its responding papers to that motion (cf., Goldstein v County of Monroe, 77 AD2d 232) and the parties were not given notice that the motion would be treated as one for summary judgment (see, CPLR 3211 [c]). Thus, Special Term’s order properly recites that the motion was made under CPLR 3211.

"[A] complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every possible favorable inference, a cause of action exists.” (Rovello v Orofino Realty Co., 40 NY2d 633, 634.) Here, Special Term properly denied the motion because, assuming as we must the truth of the allegations, the complaint states valid causes of action.

Defendant’s claim that plaintiff was not properly authorized to bring this action is without merit. (Appeal from order of Supreme Court, Monroe County, Curran, J. — dismiss complaint.) Present — Dillon, P. J., Callahan, Pine, Lawton and Davis, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order affirmed without costs. All concur, Callahan, J., not participating. Memorandum: Defendant moved for dismissal of the complaint pursuant to CPLR 3211. Plaintiff expressly limited its responding papers to that motion (cf., Goldstein v County of Monroe, 77 AD2d 232) and the parties were not given notice that the motion would be treated as one for summary judgment (see, CPLR 3211 [c]). Thus, Special Term’s order properly recites that the motion was made under CPLR 3211.

"[A] complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every possible favorable inference, a cause of action exists.” (Rovello v Orofino Realty Co., 40 NY2d 633, 634.) Here, Special Term properly denied the motion because, assuming as we must the truth of the allegations, the complaint states valid causes of action.

Defendant’s claim that plaintiff was not properly authorized to bring this action is without merit. (Appeal from order of Supreme Court, Monroe County, Curran, J. — dismiss complaint.) Present — Dillon, P. J., Callahan, Pine, Lawton and Davis, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

138 A.D.2d 953, 526 N.Y.S.2d 286, 1988 N.Y. App. Div. LEXIS 2653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-penfield-v-baker-commodities-inc-nyappdiv-1988.

Opinion

Related

Cite This Page — Counsel Stack