Opinion
10-23-2014
Richard C. LEE, et al., Plaintiffs–Appellants, v. DOW JONES & COMPANY, INC., Defendant–Respondent. Richard C. Lee, Plaintiff–Appellant, v. New York City Industrial Development Agency, et al., Defendants–Respondents. Richard C. Lee, et al., Plaintiffs–Appellants, v. Principal Building Services, Inc., et al., Defendants.
Russell A. Schindler, Kingston, for appellants. Lewis, Brisbois, Bisgaard & Smith, LLP, New York (Marsha E. Harris of counsel), for respondents.
Russell A. Schindler, Kingston, for appellants. Lewis, Brisbois, Bisgaard & Smith, LLP, New York (Marsha E. Harris of counsel), for respondents.
Opinion Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered January 30, 2014, which granted defendant Dow Jones & Company, Inc.'s motion to dismiss the complaint, and denied, as moot, plaintiffs' cross motion to consolidate the three actions, unanimously reversed, on the law, without costs, the motion denied, and the cross motion granted.
In the circumstances presented, the court improperly considered affidavits and deposition testimony submitted by defendant in deciding its CPLR 3211(a)(7) motion to dismiss the complaint. CPLR 3211(a)(7) “limits [the court] to an examination of the pleadings to determine whether they state a cause of action” (Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351, 961 N.Y.S.2d 364, 985 N.E.2d 128 [2013] ; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ). “Modern pleading rules are ‘designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly stated one’ ” (id. at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 ). Here, defendant's submissions regarding “special employment” did not negate the elements of plaintiff's complaint, which asserts common law negligence. Indeed, in their opposition papers, plaintiffs argued that since they had not yet had discovery, a motion for summary judgment was premature, and they “request[ed]” that the motion court decline to treat defendant's motion as a motion for summary judgment.
Defendant does not oppose consolidation of the three actions (see CPLR 602 [a]; Amcan Holdings, Inc. v. Torys LLP, 32 A.D.3d 337, 821 N.Y.S.2d 162 [1st Dept.2006] ).
GONZALEZ, P.J., SAXE, DeGRASSE, RICHTER, CLARK, JJ., concur.