Town of Penfield v. Baker Commodities, Inc. ( 1988 )

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.