Opinion
June 6, 1966
In an action against a village and the members of its board of trustees, individually and as such members, for a declaratory judgment and other relief, defendants appeal from an order of the Supreme Court, Nassau County, entered December 24, 1965, which denied their motion to dismiss the complaint on the ground that it fails to state a cause of action (CPLR 3211, subd. [a], par. 7). Order modified so as to grant the motion as to the defendant trustees in their individual capacities. As so modified, order affirmed, without costs. Action severed accordingly. The complaint pleads three causes of action. As to the defendant trustees, each cause is against them in both their trust and individual capacities. The motion to dismiss, made by all the defendants in a single notice of motion, was addressed to the entire complaint. In our opinion, the entire complaint is insufficient as against the trustees in their individual capacities ( Rottkamp v. Young, 21 A.D.2d 373, affd. 15 N.Y.2d 831). However, we find the third cause of action sufficient as against the defendant village and the defendant trustees in their official capacities. Hence, we need not reach the question of the sufficiency of the first and second causes as against these latter defendants, since the sufficiency of one cause of action as against them requires denial of the motion to dismiss the entire complaint as to them ( Griefer v. Newman, 22 A.D.2d 696). Despite the general rule stated in Griefer, however, we are dismissing the complaint as against the trustees in their individual capacities, since the complaint does not state a cause of action against them personally; and to sustain the complaint against them personally, on the basis of the procedural rule stated in Griefer, would merely encourage unnecessary multiplicity of proceedings by inviting a new motion by them, alone, in their individual capacities (cf. Lipsman v. Warren, 10 A.D.2d 868). Ughetta, Acting P.J., Christ, Hill, Rabin and Benjamin, JJ., concur.