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KELLER v. BARRY

73 A.D.2d 611 (1979)

Eleanor C. Keller et al., Appellants, v. James C. Barry, Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 10, 1979

Order reversed, with $50 costs and disbursements, motion to dismiss denied and complaint reinstated.

The complaint is sufficient on its face. The allegations contained in the affirmation submitted on behalf of the defendant's motion to dismiss could not be considered unless the court treated the motion as one for summary judgment (see Rovello v Orofino Realty Co., 40 N.Y.2d 633

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