Pelkey v. General Electric Capital Assurance Co‪.‬

In this case, plaintiff appeals as of right from a circuit court order granting defendant Drzewieckis motion for summary judgment. Defendant Drzewiecki moved for summary judgment pursuant to GCR 1963, 117.2, subds (1) and (3), and the circuit court did not specify which subrule provided the basis for its decision. However, because defendant Drzewiecki filed no affidavits or other evidence contradicting any of the allegations of fact in plaintiffs complaint, and because the circuit court stated in its decision that it would assume for the purpose of resolving the motion that plaintiffs allegations of fact were true, we will treat the circuit courts decision as holding that plaintiff had failed to state a claim on which relief could be granted, GCR 1963, 117.2(1). A motion for summary judgment pursuant to GCR 1963, 117.2(1) tests the legal sufficiency of the complaint and should not be granted unless, accepting as true the factual allegations in the complaint, plaintiffs claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. See, for example, Fidelity & Deposit Co of Maryland v Newman, 109 Mich App 620, 622-623; 311 NW2d 821 (1981).