Opinion
Decided and Entered: June 29, 2001.
Appeal from an order of the Supreme Court (Mulvey, J.), entered June 15, 2001 in Tompkins County, which, inter alia, granted defendants' cross motion to dismiss the complaint.
Barney, Grossman, Dubow Marcus (William J. Troy III of counsel), Ithaca, for appellants.
Harris Beach L.L.P. (Edward C. Hooks of counsel), Ithaca, for respondents.
Before: Cardona, P.J., Mercure, Crew III, Spain and, Mugglin, JJ.
MEMORANDUM AND ORDER
Plaintiffs commenced this action for declaratory and injunctive relief based upon claims that Local Laws, 2001, No. 3 of Tompkins County, establishing new legislative districts from which the members of the Tompkins County Board of Representatives are elected, violates the Tompkins County Charter and the Federal and State Constitutions. Plaintiffs also moved for a preliminary injunction preventing implementation of the redistricting plan during the pendency of the action. Defendants answered and cross-moved to dismiss the complaint. Supreme Court granted the cross motion pursuant to CPLR 3211(a)(7), dismissed the complaint and denied plaintiffs' motion. Plaintiffs appeal.
Inasmuch as the court, on a motion to dismiss for failure to state a cause of action, "must accept the allegations of the complaint as true and ignore the affidavits submitted by defendants" (Henbest Morrisey v. W.H. Ins. Agency, 259 A.D.2d 829, 830; see, Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636), Supreme Court erred in granting defendants' cross motion to dismiss the complaint, which on its face states several causes of action. Assuming that the parties' submissions of facts and arguments on the cross motion are sufficient to deliberately chart a summary judgment course (see, Gregware v. Key Bank of N.Y., 218 A.D.2d 859,lv denied 87 N.Y.2d 803), defendants' motion papers relied on facts regarding the capacity of the Cornell University dormitories that are inadmissible hearsay. Accordingly, defendants failed to meet their burden as the party seeking summary judgment to tender evidentiary proof in admissible form (see, CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Supreme Court's order dismissing the complaint must, therefore, be reversed. In addition, we decline plaintiffs' invitation to search the record and grant summary judgment in their favor.
We note that Supreme Court's denial of plaintiffs' motion for a preliminary injunction was based on its conclusion that the complaint should be dismissed. Accordingly, the merits of that motion were not considered by Supreme Court and, therefore, we will not consider them on this appeal, particularly in view of the likelihood of a change in circumstances during the pendency of this appeal. Our reversal of the order leaves the motion pending for resolution by Supreme Court in the first instance.
Cardona, P.J., Mercure, Crew III, Spain and Mugglin, JJ., concur.
ORDERED that the order is reversed, on the law, without costs, and defendants' cross motion to dismiss the complaint denied.