Gray v. Rochester Gas & Electric Corp. — 97 A.D.2d 975

Majority

p. 975

Donald C. Gray et al., Respondents, v Rochester Gas and Electric Corporation, Appellant. Edward W. Garrett et al., Respondents, v Rochester Gas and Electric Corporation, Appellant.

Order, insofar as appealed from, unanimously reversed, without costs, and defendant’s motion to dismiss second cause of action granted in accordance with the following memorandum: Special Term should have dismissed plaintiffs’ second cause of action with leave to replead. Although Special Term recognized and plaintiffs concede that their second cause of action fails to state a claim for breach of warranty, Special Term found that it could be interpreted as stating a claim for breach of a third-party beneficiary contract. Under our liberal pleading rules a motion to dismiss should be denied if any cause of action may be discerned from the pleadings (see Foley v D’Agostino, 21 AD2d 60 ); nevertheless, the allegations must be sufficient to give notice to the opposing party and to establish the material elements of the claim. Where, as here, a material element is lacking and the allegations make it difficult for defendant to answer, the complaint

p. 976

should be dismissed with leave to replead (see Taylor v Sefcheck, 96 AD2d 1144 ; Shapolsky v Shapolsky, 22 AD2d 91 ). Our determination should not be read as passing on the merits of plaintiffs’ claim, but merely that inasmuch as it purports to state only a claim for breach of warranty, it is insufficient to apprise defendant of the elements of a claim on the purported third-party beneficiary theory so that it can frame an appropriate response (see Siegel, NY Prac, § 208). (Appeal from order of Supreme Court, Genesee County, Morton, J. — dismiss cause of action.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.

Cases cited

Foley v. D'Agostino 21 AD2d 60 N.Y. App. Div. 1964-03-17 p. 975
Shapolsky v. Shapolsky 22 AD2d 91 N.Y. App. Div. 1964-11-19 p. 976