27 A.D.2d 936 | N.Y. App. Div. | 1967
Order of the Supreme Court, Nassau County, dated September 22, 1964, reversed, with one bill of $10 costs and disbursements, and motions denied. The time of the third-party defendant to answer is extended until 20 days after entry of the order hereon. In our opinion, the issue as to whether the complaint states a cause of action should await the development of proof, and should not have been resolved, as it was, on motions made pursuant to CPLR 3211 (subd. [a], par. 1) which, by agreement of the parties, was treated as the equivalent of a motion for judgment on the pleadings. On such motions, as conceded, the facts stated in the pleading are deemed to be true, and the pleading is to be liberally construed. Under these rules of construction, the instant complaint, while not expressly alleging that defendant County of Nassau actively or willfully interfered with plaintiff in the course of its work so as to effect the delay complained of, will be deemed to include such allegation. While the defendant County of Nassau and the third-party defendant properly urge the exculpatory clause as a defense to the plaintiff contractor’s claim for damages for delay, such clause “is not always absolute”, even if its verbiage encompasses “any” reason for the
