Surdi v. Jameco Operating Corp.

In an action, inter alia, to recover damages resulting from the- sale of plaintiff’s property by a referee at an allegedly inadequate price, (1) plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County, dated September 21, 1976, as granted the cross motions of defendants Jameco Operating Corp. and Abel-Cola Realty Corp. to dismiss the complaint as against them and directed the clerk of the court to enter judgment in their favor dismissing the complaint, and (2) defendant Maspeth Federal Savings & Loan Association appeals from so much of the same order as denied its motion to dismiss the complaint. Order modified, on the law, by deleting the third decretal paragraph thereof and by substituting therefor a provision granting the motion of defendant Maspeth Federal Savings & Loan Association to dismiss the complaint as against it. As so modified, order affirmed, without costs or disbursements. On the record presented the complaint is insufficient as a matter of law; a motion to dismiss a complaint on that ground may be made before the service of an answer. (See Rockland Light & Power Co. v City of New York, 289 NY 45, 51; see, also, Israel v Wood *839Dolson Co., 1 NY2d 116, 118-119.) Hopkins, J. P., Latham, Titone and O’Connor, JJ., concur.