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PAUL E. MOLLER v. BOARD EDUCATION CITY ALBANY ET AL. (10/17/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


- decided: October 17, 1968.

PAUL E. MOLLER, AN INFANT, BY GWEN G. MOLLER, HIS MOTHER AND NATURAL GUARDIAN, ET AL., RESPONDENTS,
v.
BOARD OF EDUCATION OF THE CITY OF ALBANY ET AL., APPELLANTS.

HERLIHY, J.P. Appeal from an order of Special Term, Albany County, entered on September 9, 1966, denying the appellants' motion to dismiss the amended complaint for failure to state a cause of action. The issue as stated by the appellant is whether or not the respondents' amended complaint alleges "all the elements of any recognizable cause of action in any of the six causes of action set forth [ therein ] ". While the amended complaint is deficient in many respects, the Special Term was correct in enying the relief sought herein which is the dismissal of the complaint for failure to state a cause of action. As the proof develops at the trial, the court will be in a position to determine whether the several causes of action are proven and to reappraise the pleadings. Order affirmed, with costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.P.

19681017

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