## Facts

- After her husband’s death, Nella Nicastro entered a written agreement (Oct. 1970) with Michael Rovello and Edward Staib to transfer (1) an insurance agency, (2) the building and land housing it, and (3) stock in Orofino Realty Co., Inc., whose sole asset was adjacent improved real estate.
- The first two transfers were completed; the dispute concerned the stock transfer.
- Rovello sued for specific performance, alleging Nicastro failed to transfer the stock and asserting he was ready and willing to perform his obligations under the agreement.
- Defendants moved to dismiss under CPLR 3211(a)(7), submitting affidavits asserting Rovello never tendered a required $5,700 down payment, claimed to be a condition precedent.
- The trial court denied dismissal; the Appellate Division reversed and dismissed; Rovello appealed.

## Issues

1. On a CPLR 3211(a)(7) motion, may a court dismiss a facially sufficient complaint based on affidavits disputing plaintiff’s performance, without converting the motion to summary judgment under CPLR 3211(c) and providing notice?
2. When may affidavits on a CPLR 3211(a)(7) motion justify dismissal because they conclusively establish the plaintiff has no cause of action?

## Decision

- The Court of Appeals reversed the Appellate Division and reinstated the trial court’s order denying the motion to dismiss.
- The complaint, liberally construed and given all favorable inferences, stated a viable claim for specific performance regarding the stock transfer.
- Defendants’ affidavits alleging nonpayment raised factual disputes and did not conclusively negate the claim.
- Disposing of the merits through a pleading motion, without CPLR 3211(c) notice of conversion to summary judgment, was improper.

## Legal Principles

- On a CPLR 3211(a)(7) motion, the pleading is liberally construed; the plaintiff receives every favorable inference, and dismissal is improper if any cognizable cause of action is shown.
- Affidavits on a CPLR 3211(a)(7) motion may be used to clarify or preserve an inartfully pleaded but potentially meritorious claim, not to test evidentiary support as on summary judgment.
- CPLR 3211(c) requires adequate notice before treating a CPLR 3211 motion as one for summary judgment, so parties have a fair opportunity to make a complete factual showing.
- Dismissal on affidavits may be appropriate only in the limited circumstance where the plaintiff’s submissions conclusively establish that no cause of action exists.

## Conclusion

Because Rovello’s pleadings stated a viable claim and the motion affidavits did not conclusively defeat it, dismissal under CPLR 3211(a)(7) amounted to an improper merits determination without the notice required for summary judgment treatment under CPLR 3211(c).


Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (N.Y. 1976)