
    Shea & Gould, Appellant, v Duncan Miller, Respondent.
    [598 NYS2d 263]
   —Order, Supreme Court, New York County (Carol E. Huff, J.), entered June 17, 1992, which granted defendant’s motion pursuant to CPLR 3211 (a) (1) and (7) for dismissal of the complaint, unanimously reversed, on the law, with costs and disbursements, the motion denied, and the complaint reinstated.

The order dismissed the complaint without prejudice to plaintiff’s right to replead against the estate, of which defendant served as coexecutor. The order further directed that any such action should be brought in the Surrogate’s Court pursuant to SCPA 2110.

It was alleged in the complaint that defendant had agreed to pay plaintiff’s fees and disbursements and that he had failed to do so. On a motion addressed to the facial sufficiency of the complaint, such an allegation must be deemed to be true (see, Cohn v Lionel Corp., 21 NY2d 559, 560). Thus, the complaint clearly states a proper cause of action and there is no restriction on plaintiff’s right to seek redress therefor in the Supreme Court. Concur—Sullivan, J. P., Ross, Kassal and Nardelli, JJ.  