Tinston v. City of New York

Valente, J. (dissenting).

I concur in the opinion of McNally, J., that the complaint fails to state a cause of action. But I would affirm the dismissal of the complaint upon another basis as well.

Since the motion to dismiss was made pursuant to subdivision 4 of rule 106 of the Buies of Civil Practice, affidavits may not be considered. (St. Regis Tribe v. State of New York, 5 N Y 2d 24, 36.) However, the motion was made in conjunction with a motion by plaintiff for a temporary injunction in which voluminous affidavits of all of the facts pertinent to the controversy were submitted. The court is unanimous in affirming the denial of the temporary injunction, albeit for different reasons.

A motion for summary judgment under rule 113 of the Buies of Civil Practice may be made only after an answer is served. Under the new Civil Practice Law and Buies, which become effective on September 1,1963, subdivision (c) of rule 3211 provides that where a motion to dismiss a complaint is made on the ground that the pleading fails to state a cause of action, upon the hearing of such a motion either party may submit any evidence that could properly be considered on a motion for summary judgment and the court may treat the motion as a motion for summary judgment. Thus, under the new rules the court could consider the affidavits submitted on the application for a temporary injunction and deem the motion to dismiss to be one for summary judgment.

I would reach the same result which will eventually be permitted by the new rules by deeming that an answer had been interposed here denying the material allegations of the complaint and considering the affidavits on the motion for a temporary injunction as addressed to a motion for summary judgment for a dismissal of the complaint. Since it appears from such affidavits that there is no triable issue of fact and that plaintiff has no cause of action, I would dismiss the complaint on that additional ground.

Babin, J. P., and Eager, J., concur with Steuer, J.; Valente and McNally, JJ., dissent in separate opinions.

Order, entered on August 24,1962, modified on the law, to the extent of vacating so much of the order as grants the cross motion to dismiss the complaint and to deny said motion, and otherwise affirmed, without costs.