Majority
p. 1085Donna E. Spillman, Individually and as Limited Administratrix of the Estate of Bernard J. Spillman, Deceased, Respondent, v City of Rochester, Appellant.
— Order unanimously modified on the law and as modified affirmed, without costs, in accordance with the following memorandum: We agree for the reasons stated in the decision of Supreme Court (Cornelius, J.) that the motions to dismiss the complaint pursuant to CPLR 3211 (a) (2) and for a protective order were
p. 1086
properly denied. We modify the order appealed from only to the extent that, instead of denying the motion to dismiss the complaint on the ground that it fails to state a cause of action, a continuance be granted until the completion of discovery proceedings (see, CPLR 3211 [d]). (Appeal from order of Supreme Court, Monroe County, Cornelius J. — dismiss complaint.) Present — Callahan, J. P., Denman, Boomer, Pine and Lawton, JJ.