Opinion
June 21, 1965
In a negligence action to recover damages for personal injury and loss of services, the defendant Amity Estates, Inc., appeals from an order of the Supreme Court, Dutchess County, entered January 27, 1965, which denied its motion to dismiss the amended complaint as to it; and the defendant Waisman appeals from another order of said court, entered the same date, which denied his motion to dismiss the amended complaint as to him. On the appeal by defendant Waisman: order reversed, without costs; his motion to dismiss granted, and the amended complaint dismissed as to him, without costs. On the appeal by defendant Amity Estates, Inc.: order affirmed, without costs. Defendant Waisman moved to dismiss the amended complaint pursuant to CPLR 3211, on the ground, inter alia, that documentary evidence established his defense to the action. The copies of a recorded deed and a lease signed by the adult plaintiff revealed the corporate defendant Amity Estates, Inc., to be the owner and landlord of the subject premises. This evidence was not controverted by plaintiffs. Nor did they advance any theory under which this defendant could be held liable. Accordingly, as to this defendant we are required to dismiss the complaint ( Wall v. Lo Verde, 23 A.D.2d 572). The evidence submitted on behalf of the corporate defendant does not justify a dismissal of the complaint as to it. Questions of fact are present which may only be determined at trial. The time of defendant Amity Estates, Inc., to serve an answer to the amended complaint is extended until 30 days after entry of the order hereon. Ughetta, Acting P.J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.