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ROY v. HARTOGS

85 Misc.2d 891 (1976)

Julie Roy, Respondent, v. Renatus Hartogs, Appellant.

Supreme Court, Appellate Term, First Department.

January 30, 1976

Attorney(s) appearing for the Case

Cohen & Bauman (Jesse Climenko and James H. Schuyler of counsel), for appellant. Lans Feinberg & Cohen (Robert Stephan Cohen and Deborah E. Lans of counsel), for respondent.

MARKOWITZ, P. J., and TIERNEY, J., concur, MARKOWITZ, P. J., in concurring memorandum; RICCOBONO, J., dissents in separate memorandum.

Per Curiam.

A complaint should not be dismissed on the opening statement of counsel unless, accepting as true all facts stated in the opening and resolving in plaintiff's favor all material facts in issue, plaintiff nevertheless is precluded from recovery as a matter of law (Rivera v Board of Educ. of City of N.Y., 11 A.D.2d 7, 8, 9). Counsel asserted in the opening statement...

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