Rozay v. Hegeman Steel Products, Inc.

This is not a motion for summary judgment (Rules Civ. Prac., rule 113), as stated in plaintiff’s answering affidavit — which, on the present motion, must be ignored (Harris v. Averick, 24 Misc 2d 1039, 1041; Spring v. Moncrieff, 208 Misc. 671, 678). It is a motion by the defendant, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, for an order dismissing the first and second causes of action of plaintiff’s amended complaint upon the ground that each fails to state facts sufficient to constitute a cause of action.

*11Taking into account the documents of agreement annexed to the…