Rovello v. Orofino Realty Co.

The majority of this court has today ruled that on a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7), the trial court may not dismiss as long as the complaint and the plaintiffs affidavit, if there be any, state all the elements of a cause of action, and that a defendant’s affidavit, clearly showing the absence of one of these essential elements, is of no avail. In essence, the majority has abrogated the statute and has revitalized the common-law demurrer.

In October, 1970, the individual defendant entered into a *637written agreement with the…