Kelly v. Bank of Buffalo

Order unanimously reversed, with costs, and motion denied. Memorandum: The motion to dismiss this complaint was made pursuant to CPLR 3211 (subd. [a], par. 7) upon the ground that it failed to state a cause of action. Although the court might have treated the motion as one for summary judgment (CPLR 3211, subd. [c]), there is nothing in the record to indicate that the court did in fact choose to treat it as such. On the contrary, both the order appealed from and the decision of the court state that the complaint is dismissed for failure to state a cause of action and the notice of appeal…