Sanders v. Schiffer , 39 N.Y.2d 727 ( 1976 )

Memorandum. The order of the Appellate Division should be modified. The granting of the motions to dismiss the complaint and to cancel the associated notice of pendency should be affirmed. Such affirmance, however, is without prejudice to the right of appellants, if they be so advised, to apply at Special Term for leave to serve an amended complaint, notwithstanding that they failed to state a desire to plead again in their opposing papers and that they do not urge such disposition now. On such application, if any, a copy of the proposed amended complaint shall be submitted to the court, accompanied by a disclosure of the evidentiary facts which would support the claim or claims set forth in the proposed amended complaint and will justify the granting of such leave (CPLR 3211, subd [e]).

We agree with the majority at the Appellate Division that the complaint as it now stands does not state a cause of action. Nonetheless, if there are evidentiary facts which would warrant recovery under the applicable principles of law, appellants should be afforded an opportunity to demonstrate their right to relief.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, . Wachtler, Fuchsberg and Cooke concur.

Order modified, with costs to defendants, in accordance with the memorandum herein and, as so modified, affirmed.