Nicastro v. Marine Midland Bank, 44 N.Y.2d 640 (1978)
When considering a motion to dismiss for failure to state a cause of action, a court should not treat it as a motion for summary judgment without providing adequate notice to the parties, and affidavits submitted should primarily serve to clarify the pleadings unless they conclusively prove the plaintiff has no cause of action.
Summary
This case concerns the standard for dismissing a complaint under CPLR 3211(a)(7) when affidavits are submitted. The plaintiff sought specific performance of a real estate agreement. The defendant moved to dismiss for failure to state a cause of action, submitting affidavits suggesting the plaintiff never tendered the required down payment. The Court of Appeals held that a motion to dismiss should not be granted if the complaint, given all favorable inferences to the plaintiff, states a cause of action. The court emphasized that unless the motion is converted to one for summary judgment with proper notice, affidavits should primarily be used to clarify pleadings, not to conclusively determine the merits of the case. The Appellate Division’s order reversing the denial of the motion to dismiss was reversed, and the Special Term’s order was reinstated.
Facts
Defendant Nicastro agreed to sell her late husband’s insurance business and related real estate to plaintiff. The agreement involved three transfers: the insurance agency, the building housing the agency, and stock in Orofino Realty Co., Inc. The first two transfers were completed. The current dispute concerns the transfer of the Realty Co. stock. The plaintiff alleged the defendant’s nonperformance and his own readiness to perform. The defendants moved to dismiss, arguing that the plaintiff never tendered the $5,700 down payment required for the Realty Co. stock transfer.
Procedural History
The Special Term denied the defendant’s motion to dismiss. The Appellate Division reversed, granting the motion to dismiss the complaint. The plaintiff appealed to the New York Court of Appeals.
Issue(s)
Whether a court may grant a motion to dismiss under CPLR 3211(a)(7) without treating it as a motion for summary judgment when the complaint is sufficient on its face, but affidavits suggest the plaintiff may not have a cause of action.
Holding
No, because CPLR 3211(c) requires that if the court decides to treat a CPLR 3211(a) motion as one for summary judgment, it must first provide adequate notice to the parties, giving them an opportunity to make an appropriate record. Affidavits received on an unconverted motion to dismiss are not to be examined for the purpose of determining whether there is evidentiary support for the pleading.
Court’s Reasoning
The Court of Appeals emphasized that a complaint should not be dismissed if it states a cause of action when the plaintiff is given the benefit of every possible favorable inference. The court noted that while affidavits may be considered in a motion to dismiss, their role is limited unless the motion is converted to one for summary judgment. CPLR 3211(c) explicitly requires that parties receive adequate notice if the court intends to treat the motion as one for summary judgment, allowing them to present all relevant evidence. Without such notice, affidavits should primarily be used to clarify the pleadings, not to determine whether there is sufficient evidentiary support for the claim.
The court stated, “[I]n instances in which a motion to dismiss made under CPLR 3211 (subd [a], par 7) is not converted to a summary judgment motion, affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint, although there may be instances in which a submission by plaintiff will conclusively establish that he has no cause of action. It seems that after the amendment of 1973 affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action.”
The Court acknowledged that the defendants’ affidavits presented a strong defense. However, because the trial court did not convert the motion to one for summary judgment and provide proper notice, the plaintiff was not required to present all available evidence. The court suggested the possibility that the defendants might have waived the down payment requirement or acquiesced in the delay. Thus, the Court determined that the Special Term properly denied the motion to dismiss.