| N.Y. App. Div. | Mar 16, 1978
Order, Supreme Court, New York County, entered August 3, 1977, denying defendant’s motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with $60 costs and disbursements of this appeal payable to respondent. In affirming Special Term’s determination that the complaint stated valid causes of action, we assume that the court gave due consideration to the affidavits submitted in opposition to the motion which set forth allegations of unconscionability and inconspicuous notice (Uniform Commercial Code, §§ 2-302, 1-201, subd 10) in avoidance of the disclaimer provisions of the lease-purchasing agreement in issue, upon which defendant in its motion relied. (CPLR 3211, subd [c].) Otherwise, the complaint, which pleaded the agreement, a copy of which was annexed thereto, may, superficially, have failed to state a cause of action. But the test for us is not whether the complaint states a cause of action but whether the pleader has, in fact, a cause of action. As was stated in Rovello v Orofino Realty Co. (40 NY2d 633, 635-636), "affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims (see, e.g., Kelly v Bank of Buffalo, 32 AD2d 875; Raimondi v Fedeli, 30 AD2d 802).” Concur—Silverman, J. P., Evans, Lynch, Sandler and Sullivan, JJ.