Spillman v. City of Rochester

— Order unanimously modified on the law and as modified affirmed, without costs, in accordance with the following memorandum: We agree for the reasons stated in the decision of Supreme Court (Cornelius, J.) that the motions to dismiss the complaint pursuant to CPLR 3211 (a) (2) and for a protective order were *1086properly denied. We modify the order appealed from only to the extent that, instead of denying the motion to dismiss the complaint on the ground that it fails to state a cause of action, a continuance be granted until the completion of discovery proceedings (see, CPLR 3211 [d]). (Appeal from order of Supreme Court, Monroe County, Cornelius J. — dismiss complaint.) Present — Callahan, J. P., Denman, Boomer, Pine and Lawton, JJ.