Tongue v. White

The motion is to dismiss the plaintiff’s complaint pursuant to CPLR 3211 (subd. [a], par. 7), upon the ground that it does not state facts sufficient to constitute a cause of action. The action is for the recovery of real estate commissions. Upon such a motion, only the complaint is before the court. The merits of the action.cannot be passed upon and speculation may not be indulged as to what the proof may show on the trial. The allegations of the complaint must be taken at face value and every intendment and fair inference must be in favor of the pleading. (Dyer v. Broadway Cent. Bank, 252…