
    Michael Rovello, Appellant, v Orofino Realty Co., Inc., et al., Respondents.
    Argued September 7, 1976;
    decided October 26, 1976
    
      Samuel S. Slavitt and Basil Filardi, Jr., White Plains, for appellant.
    
      Albert E. Yorio, White Plains, for respondent.
   Per Curiam.

Plaintiff purchaser seeks specific performance of an agreement under which defendant Nella Nicastro agreed to sell to plaintiff her late husband’s insurance business and related real estate. Defendants, vendor and the sole corporation which holds some of the real estate, moved, pursuant to CPLR 3211 (subd [a], par 7), for judgment dismissing the complaint for failure to state a cause of action. Special Term denied the motion, a divided Appellate Division reversed, and plaintiff appeals.

The issue is whether a motion court may grant judgment under CPLR 3211 (subd [a], par 7), without treating the pleading motion as one for summary judgment, when the complaint is sufficient on its face, but the affidavits submitted indicate, not quite conclusively, that purchaser may have no cause of action. Determinative is the notice provision in the 1973 amendment to CPLR 3211 (subd [c]).

The order of the Appellate Division should be reversed, and the order of Special Term denying the motion reinstated. Under modern pleading theory, a complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every possible favorable inference, a cause of action exists. Here, given the complaint and the affidavits, there is a reasonable chance, even if some think it small, that plaintiff purchaser will ultimately prevail on the merits. Although absent further evidence, the dispute may be finally resolved on the more embracive and exploratory motion for summary judgment, disposition by summary dismissal under CPLR 3211 (subd [a], par 7), is premature.

In October, 1970, after the death of her husband, defendant Nicastro entered into a written agreement with purchaser and one Edward Staib, now deceased, for the sale and purchase of properties relating to her husband’s insurance business. The agreement involved three separate transfers: sales of (1) the insurance agency, (2) the building housing the agency and the parcel of land on which it was located, and (3) the outstanding stock in codefendant Orofino Realty Co., Inc., whose sole asset was a parcel of improved real estate adjoining the insurance agency. The first two transfers have long been fully executed. The present dispute involves only the transfer of stock in the real estate corporation.

In his complaint, the purchaser alleged defendant vendor’s nonperformance of the third part of the agreement and his own continued willingness and readiness to perform. In support of their motion to dismiss defendants submitted affidavits averring that the purchaser never tendered the $5,700 down payment required under the agreement. The affidavit of plaintiffs attorney submitted in opposition to defendants’ motion fails to meet this issue. None of the affidavits, separately or in combination, explain the extended delay in performance of this portion of the agreement. Plaintiff’s appellate counsel now argues that at a trial of the issues of fact, plaintiff will be able to establish an excuse for this failure to tender the down payment at the time specified in the agreement.

Under CPLR 3211 a trial court may use affidavits in its consideration of a pleading motion to dismiss (see Rappaport v International Playtex Corp., 43 AD2d 393, 394-395; Epps v Yonkers Raceway, 21 AD2d 798, 799; 4 Weinstein-Korn-Miller, NY Civ Prac, pars 3211.35, 3211.36). CPLR 3211 (subd [c]), by /providing that "either party may submit any evidence that could properly be considered on a motion for summary judgment”, leaves this question free from doubt. The real difficulty, however, particularly in view of the 1973 amendment to that section, lies in determining what effect shall be given the contents of affidavits submitted on a motion to dismiss when the motion has not been converted to a motion for summary judgment.

The mere fact that, judged on the complaint and affidavits alone, plaintiff could not withstand a motion for summary judgment under CPLR 3212, which requires disclosure of all the evidence on the disputed issues, cannot be controlling. Of course, CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal, as is the case under CPLR 3212 when defendant has made an evidentiary showing that refutes the pleaded cause of action. If plaintiff chooses to stand on his pleading alone, confident that its allegations are sufficient to state all the necessary elements of a cognizable cause of action, he is at liberty to do so and, unless the motion to dismiss is converted by the court to a motion for summary judgment, he will not be penalized because he has not made an evidentiary showing in support of his complaint. As amended in 1973, CPLR 3211 (subd [c]) explicitly requires that if the court decides to treat a CPLR 3211 (subd [a]) motion as one for summary judgment, it must first provide adequate notice to the parties, and thus give them an opportunity to make an appropriate record (see Nineteenth Ann Report of NY Judicial Conference, 1974, pp 62-63; see, also, Mareno v Kibbe, 32 AD2d 825). Since no such precaution need be taken if the motion is not so treated, affidavits received on an unconverted motion to dismiss for failure to state a cause of action are not to be examined for the purpose of determining whether there is evidentiary support for the pleading.

On the other hand, affidavits may bemused freely to preserve inartfully pleaded, but potentially meritorious, claims (see, e.g., Kelly v Bank of Buffalo, 32 AD2d 875; Raimondi v Fedeli, 30 AD2d 802). Modern pleading rules are "designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly stated one” (6 CarmodyWait, 2d, NY Prac, § 38:19; see Kelly v Bank of Buffalo, 32 AD2d 875, supra). In sum, in instances in which a motion to dismiss made under CPLR 3211 (subd [a], par 7) is not converted to a summary judgment motion, affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint, although there may be instances in which a submission by plaintiff will conclusively establish that he has no cause of action. It seems that after the amendment of 1973 affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action.

In this case, defendants’ affidavits present a seemingly strong defense. If the trial court had chosen to treat defendants’ motion as one for summary judgment under CPLR 3211 (subd [c]), and 3212, and had adequately notified the parties, plaintiff would have been forced to introduce further evidence to withstand the motion. In fact, such evidence might well exist. For instance, defendants might have waived the right to receive a down payment, or the delay in its tender, or otherwise acquiesced in the thus far unexplained nonperformance by the purchaser. In short, plaintiff may be able to shed more light than he has on the unexplained delay in performance of the disputed portion of the agreement.

For these reasons, Special Term properly denied defendants’ motion to dismiss; the order of the Appellate Division should be reversed, with costs to abide the event, and the motion to dismiss denied.

Wachtler, J.

(dissenting). 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 written agreement with the plaintiff and one other calling for, inter alia, the sale by the defendant to the plaintiff of all the outstanding stock in codefendant Orofino Realty Co., Inc. The sole asset of the realty company was a parcel of improved real estate. The purchase price was $18,700; pursuant to the terms of the agreement, plaintiff was to make a down payment of $5,700 in cash or certified check within 16 months of December, 1970, with the balance payable in equal quarterly installments.

Plaintiff admittedly failed to make the down payment within the prescribed period; i.e., prior to the end of April, 1972. Indeed, in the complaint in this action, plaintiff admits that he did not render any payment until April 21, 1975, some three years after the down payment was called for by the terms of the contract; and, the payment tendered was in the form of a personal check for $1,870, not the $5,700 called for by the agreement. Defendant rejected the tendered payment, and in May, 1975 plaintiff commenced this action for specific performance by the service of a summons and verified complaint.

While the plaintiff states in the complaint that "he stood ready, able and willing to complete the transaction” nowhere does he allege that he in fact had tendered the down payment.

Defendants, prior to the service of an answer, moved to dismiss the complaint for failure to state a cause of action. In support of their motion defendants submitted affidavits by their counsel and by the individual defendant pointing out the failure on the part of the plaintiff to make the required down payment. Plaintiffs counsel submitted an affidavit in opposition to the motion to dismiss, but the plaintiff himself did not submit an affidavit. In the affidavit in opposition plaintiffs counsel tacitly admits that there had been no tender of the requisite down payment; he claims, however, that any delays in the culmination of the transaction were either excusable by reason of the death of plaintiffs partner, or consented to, or the fault of, the individual defendant. The affidavit does not, however, place any fact in evidence or even present the offer of a scintilla of proof to support these conclusory claims.

Plaintiffs attorney claimed that the failure on the plaintiffs part to tender the down payment could be attributed to (1) the untimely death of his partner; (2) the absence of the individual defendant from the jurisdiction; and (3) the individual defendant’s willingness to extend the closing time. In response to these allegations we need only note that (1) the plaintiffs partner died on June 30, 1974, some 26 months after the date the down payment was due; (2) plaintiffs attorney, in his affidavit, admits that the individual defendant was absent from the jurisdiction for only approximately 22 Vi% of the time since the date of the agreement in question; and (3) there has been no real evidence offered that the individual defendant consented to extend the time for closing.

A motion to dismiss for failure to state a cause of action is no longer, as it once was, limited to the face of the complaint (CPLR 3211, subd [c]). The question now is whether the plaintiff has a cause of action, not simply whether he has stated one. Thus, the court may consider affidavits and other extrinsic proof to determine whether a fact essential to the plaintiffs cause of action is lacking. (See Siegel,. Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:24, pp 30, 31; 4 Weinstein-Korn-Miller, NY Civ Prac, pars 3211.35, 3211.36, 3211.43; 6 Carmody-Wait, 2d, NY Prac, § 38.19; Nader v General Motors Corp., 25 NY2d 560, 565; Rapoport v Schneider, 29 NY2d 396, 401; Hamilton Print. Co. v Payne Corp., 26 AD2d 876; Harris v Sobel, 31 AD2d 529; Kelly v Bank of Buffalo, 32 AD2d 875.)

Today, however, this court has held that these affidavits "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading.” Hence, the defendant can no longer move to dismiss under this section no matter how conclusively he can show that the plaintiffs cause of action, though properly pleaded, has no basis in fact. Thus, while CPLR 3211 (subd [c]) specifically provides that "either party may submit any evidence that could properly be considered on a motion for summary judgment” in connection with a motion to dismiss, the majority’s decision makes it an empty exercise for the defendant to do so.

While the trial court should be more circumspect before using affidavits to cut short a plaintiffs "day in court” in connection with a CPLR 3211 (subd [a], par 7) motion which has not been treated as one for summary judgment, we cannot agree that this plaintiff should be allowed to defeat the motion to dismiss by means of a conclusory affidavit by his attorney asserting defenses of waiver and excuse of performance where, as here, it is clear that an essential element of the cause of action is admittedly absent. "Paragraph 7 * * * does not compel the movant to assume the truth of the allegations. If he can show that any material fact the pleader claims to be a fact is not a fact at all, and that no significant dispute can be said to exist regarding it, the motion lies and may be granted.” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:25, p 31.) If this complaint and its concededly vacuous affidavit can survive, then it would be difficult to conceive of any complaint that would not.

The burden rests with the plaintiff with respect to the issue of the performance of the condition precedent, i.e., the tender of the down payment; we do not believe that the plaintiff can admit the nonperformance of this condition precedent and yet sustain his cause of action against a motion to dismiss by a mere conclusory, and apparently unsupported, allegation of waiver or excuse of performance. While the majority is correct that the viability of a party’s cause of action should not depend on the degree of skill possessed by his counsel, this shield should not be transformed into a sword by allowing the plaintiff’s cause of action to stand under these circumstances. The burden should not be placed on the defendant to go forward with a defense to this insufficient complaint; if the plaintiff truly has factual material which might justify his failure to tender the down payment, he should be required to plead it. There is little solace to the defendant that the plaintiff’s action might be more successfully challenged via a motion for summary judgment, since this defendant has already borne the expenses of legal representation with respect to this motion and any further representation in this matter will only increase that burden.

Accordingly, the order of the Appellate Division dismissing the complaint should be affirmed.

Chief Judge Breitel and Judges Jasen, Jones, Fuchsberg and Cooke concur in Per Curiam opinion; Judge Wachtler dissents and votes to affirm in a separate opinion in which Judge Gabrielli concurs.

Order reversed, etc.  