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Wright v. County of Nassau

81 A.D.2d 864 Court N.Y. App. Div. Decision date 1981-05-11 English

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p. 864
Marcella Wright, Respondent, v County of Nassau et al., Appellants.

— In an action, inter alia, to recover damages for negligence, defendants appeal from an order of the Supreme Court, Nassau County, dated June 5, 1980, which denied their motion to dismiss the complaint. Order affirmed, without costs or disbursements. Although there appear to be meritorious grounds for dismissal of certain causes of action pleaded in the complaint, none of the arguments advanced for doing so were raised at Special Term and under the instant circumstances it would be improper to consider them on this appeal (see Brown v Kimmel, 68 AD2d 896 ; Matter of Poulos v D’Elia, 66 AD2d 820 ; American Ind. Contr. Co. v Travelers Ind. Co., 54 AD2d 679 , affd 42 NY2d 1041 ). Furthermore, despite the availability to at least some of the defendants of an immunity predicated upon the judgmental nature of their functions (see Rottkamp v Young, 21 AD2d 373 , affd 15 NY2d 831 ), the defendants’ motion papers contain an admission that

p. 865
their functions in administering the home relief program (see 18 NYCRR Part 385) are solely ministerial and nondiscretionary. Finally, the motion to dismiss was addressed to the complaint as a whole rather than to individual causes of action. Under such circumstances, dismissal is proper only where none of the causes of action is valid (see Matter of Fritz v Board of Educ., 70 AD2d 593 ; Duffy v Cross Country Inds., 57 AD2d 1063 ; Griefer v Newman, 22 AD2d 696 ). On this record we cannot conclude that none of the causes of action were valid. It is apparent, therefore, that Special Term had no alternative except to deny the motion. Titone, J.P., Lazer, Gulotta and Margett, JJ., concur.

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