KELLER v. BARRY

In an action to recover damages, inter alia, for legal malpractice, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated November 6, 1978, which granted defendant's motion to dismiss the complaint for failure to state a cause of action. Order reversed, with $50 costs and disbursements, motion to dismiss denied and complaint reinstated. The complaint is sufficient on its face. The allegations contained in the affirmation submitted on behalf of the defendant's motion to dismiss could not be considered unless the court treated the motion as one for summary judgment (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633). Mollen, P.J., Hopkins, O'Connor and Lazer, JJ., concur.