December 8, 1969
In an action to recover damages for unlawful arrest, unlawful detention, false imprisonment and malicious prosecution arising out of the arrest and indictment of plaintiff for arson and murder, defendant appeals from an order of the Supreme Court, Nassau County, entered July 29, 1968, which denied its motion to dismiss the complaint for failure to state a cause of action. Order reversed, on the law, without costs, and summary judgment granted in favor of defendant, dismissing the complaint. While defendant's motion to dismiss the complaint was based on the alleged failure of the complaint to set forth a cause of action, in its supporting papers defendant urged that there were no triable issues and it sought judgment on that ground. The papers submitted by plaintiff in opposition failed to show triable issues of fact. Accordingly, pursuant to our power under CPLR 3211 (subd. [c]), the motion has been treated as one for summary judgment. Brennan, Acting P.J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.