SLAZAK v. CAPOZZI (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Dolores SLAZAK, as Executrix of the Estate of Richard Slazak, Deceased, Plaintiff-Respondent, v. Michael CAPOZZI, Defendant-Appellant.

Decided: October 01, 1999

PRESENT: DENMAN, P.J., GREEN, HAYES, PIGOTT, JR., and SCUDDER, JJ.

Norman E.S. Greene, Buffalo, for Defendant-Appellant. Mitchell M. Matusick, for Plaintiff-Respondent.

Defendant appeals from an order of Supreme Court that denied his motion to dismiss the complaint alleging a wrongful death cause of action. Although defendant did not specify the ground upon which he sought dismissal under CPLR 3211, we construe the motion to be made pursuant to CPLR 3211(a)(7), failure to state a cause of action. Viewing the motion in that light, we conclude that the complaint is sufficient on its face because it includes all of the elements of a cause of action to recover damages for wrongful death (see, Chong v. New York City Tr. Auth., 83 A.D.2d 546, 547, 441 N.Y.S.2d 24; see generally, 21A Carmody-Wait 2d, N.Y. Prac. § 130.43, at 525-526). Defendant contends that the supporting medical affirmation is inadequate as a matter of law to support the wrongful death cause of action. We do not address that contention because plaintiff withdrew her motion to amend the complaint (cf., Hollister v. Mohawk Val. Gen. Hosp., 43 A.D.2d 802, 350 N.Y.S.2d 264), and thus the only issue before us is the sufficiency of the complaint.

Order unanimously affirmed without costs.

MEMORANDUM:

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