N.Y. C.P.L.R. § 3211

Section 3211(c) requires the court to examine the parties’ submissions for triable factual issues when deciding a motion to dismiss.

Capital District Telephone Employees Federal Credit Union v. Berthiaume · filed 1980-07-09(c)

CPLR 3211 (subd [c]) and 3212 (subd [b]) require this court to examine the parties’ submissions to determine the existence of triable factual issues on these motions to dismiss and for summary judgment.

Section 3211(a)(7) tests the sufficiency of a petition’s allegations; a motion asking the court to consider a prior proceeding’s record for triable issues of fact is a summary judgment motion.

Matter of D.P. v. S.R. · filed 2024-02-16(a)(7)

Initially, contrary to the position of the AFC, the father's motion is appropriately made under CPLR 3212 as opposed to CPLR 3211(a)(7). By submitting the record of the prior proceeding, the father is not merely testing the sufficiency of the allegations contained in the aunt's second petition but is asking the court to consider the record of the prior proceeding in addition to the allegations in the new petition to determine whether there exists any triable issue of fact ( see Tenzer v Greenblatt, Fallon & Kaplan v Capri Jewelry , 128 AD2d 467 [1st Dept 1987]).

Section 3211 generally requires a dismissal motion before the responsive pleading is due and permits the court to treat it as a summary judgment motion; notice of that treatment is unnecessary when the issue is purely legal.

Right Aid Med. Supply Corp. v. State Farm Mut. Auto. Ins. Co. · filed 2020-09-11(a), (c)

Initially, it is noted that defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) was made after issue had been joined. Generally, such a motion must be made "before service of the responsive pleading is required" (CPLR 3211 [a]), although "[w]hether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment" (CPLR 3211 [c]). Here, no such notice appears in the record; however, plaintiff does not raise the untimeliness of defendant's motion, and, in any event, the specific issue raised regarding the lack of personal jurisdiction is purely a legal one, and notice is therefore not required ( see generally Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik , 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co. , 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Under CPLR 3211(c), summary judgment is properly denied when the present record does not permit a decision as a matter of law.

ADB Net Corp. v. Columbian Mutual Life Insurance · filed 2016-03-03(c)

Columbian thus might be obligated to remit the assigned life insurance proceeds to Preferred ... although summary judgment pursuant to CPLR 3211 (c) was properly denied to Preferred, as the case cannot be decided as a matter of law on the present record.

Section 3211(c) permits a court to treat an application as a motion for summary judgment.

Ben Construction Corp. v. Snushall · filed 1964-12-03(c)

The court will treat this application as a motion for summary judgment pursuant to CPLR 3211, subd. (c).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment, but the moving papers must be sufficient to warrant that relief.

Infusino v. Pelnik · filed 1965-02-22(c)

While CPLR 3211 (subd. [c]) allows the court to treat this motion as one for summary judgment and the absence of any affidavits by plaintiff might indicate such a course, movants’ papers are not sufficient to warrant that relief.

Section 3211(c) permits a motion to dismiss supported by evidence to be considered as a motion for summary judgment, but unresolved issues can prevent summary disposition.

Walsh v. New York State Liquor Authority · filed 1965-04-09(c)

The motion can be considered, upon evidence submitted, as one for summary judgment (CPLR 3211, subd. [c]), but the posture of this action is such that constitutional and other issues remain to be fully established and fully controverted.

A motion to dismiss may be treated as one for summary judgment when the parties submit affidavits and no issues of fact remain.

Uniformed Fireman's Benevolent Ass'n v. Herten · filed 1965-04-19(e)

The defendants attached an affidavit in support of their motion to dismiss the complaint as insufficient; the plaintiffs submitted an opposing affidavit, and the court passed upon the validity of the rule. In effect, the parties and the court treated the motion as one for summary judgment, in which there were no issues of fact (see CPLR 3211, subd. [e]).

Section 3211 provides no basis to grant summary judgment on a pre-answer motion solely for a preliminary injunction that has no connection with the rule.

Town of Poughkeepsie v. Hopper Plumbing & Heating Corp. · filed 1965-05-17

Since the motion here was solely one for an injunction pendente lite and was made even before answer, and since such motion did not have any connection with CPLR 3211, we believe there is no sound basis to reach out and to invoke the provisions of that rule, as the minority suggests, in order to grant a summary judgment.

Section 3211 permits a court to treat a motion to dismiss as one for summary judgment, but appellate review proceeds on the sufficiency of the complaint when the record does not show that the court made that choice.

Klebanow v. Carrington · filed 1965-06-17(c)

While the court, in passing on this motion, could have treated it as one for summary judgment (CPLR 3211, subd. [c]) there is nothing in this record which enables us to determine whether the court did choose to treat it as such. And, indeed, the appellant’s notice of appeal states that appeal is taken from the order of “ October 30, 1964 denying defendants’ motion to dismiss the complaint against him for insufficiency”. Accordingly, we review this order on the basis that the underlying motion was addressed solely to the sufficiency of the complaint and that it was so treated by Special Term.

Section 3211(c) permits a motion to dismiss to be granted in the form of summary judgment.

McManus, Longe, Brockwehl, Inc. v. Palmer · filed 1965-07-26(c)

The motion by the State of New York for discharge as a stakeholder is denied insofar as it requests payment into court, the court directs payment of the moneys to the receiver of the rents and profits, and the motion by the mortgagee and receiver to dismiss the complaint is granted in the form of summary judgment pursuant to CPLR 3211 (subd. [c]).

CPLR 3211(c) permits a court to treat a motion to dismiss as one for summary judgment, but without supporting evidence the motion must be decided on the complaint.

De Meo v. Community Newspapers, Inc. · filed 1965-09-23(c)

They move to dismiss pursuant to CPLR 3211 and under subdivision (c) of that section this court might have considered the motion as one for summary judgment. For that purpose there would have had to have been submitted to the court evidence on which the court might have formulated a conclusion as to whether or not there was any likelihood that the plaintiff could establish his charge of malice. However, that evidence was not offered and therefore the motion must be determined on the complaint itself.

A motion to dismiss treated as a motion for summary judgment under Section 3211(e) cannot be granted when factual issues require a trial.

Condon v. Cannon · filed 1965-07-06(e)

In our opinion, the contract, when read as a whole and in conjunction with the relationship of the parties, raises issues of fact which preclude the granting, in whole or in part, of summary judgment in favor of the defendant vendor.

Section 3211(c) permits summary judgment on a motion to dismiss when an insufficient portion of a cause of action is severable from the remaining portion.

Tow v. Moore · filed 1965-07-19(c)

On this motion to dismiss the complaint, since the major portion of the cause of action asserted therein' is insufficient and .since such portion is severable from the remaining good portion, summary judgment may properly be granted dismissing the severable portion which we have found to be insufficient (CPLR 5012; CPLR 3211, subd. [c] ; CPLR 3212, subd. [e] ; Melniker v. American Tit. & Guar. Co., 253 App. Div. 570; cf. Demuth v. Griffin, 253 App. Div. 399, 402-403).

Section 3211(c) permits summary judgment for defendants when a defense challenged on a motion to dismiss is established as a matter of law.

Jackson v. Brass · filed 1965-08-12(c)

The plaintiff’s motion to dismiss the first defense is accordingly denied and summary judgment is granted in favor of the defendants pursuant to CPLR 3211, subd. (c), dismissing the plaintiff’s complaint upon the ground that the challenged defense has been established as a matter of law “ and on the further ground that, in any event, acceptance of the payments constituted an accord and satisfaction. ” (Meaney v. Keating, 279 App. Div. 1030.)

Under CPLR 3211(c), an attorney affirmation that raises no triable factual issue does not prevent summary judgment when the defense is valid as a matter of law.

Kurat v. County of Nassau · filed 1965-09-20(c)

The plaintiff has not submitted a personal affidavit, and the affirmation furnished by his attorney simply concludes that the defense of absolute privilege must be pleaded and proved at the trial. Such affidavit raises no triable factual issues and does not preclude the court from awarding summary judgment under CPLR 3211 (subd. [c]) if the defense is maintainable as a matter of law.

Section 3211(c) permits a court, upon proper submission, to treat a motion to dismiss supported by an affidavit and exhibits as a motion for summary judgment.

Firestone v. First District Dental Society · filed 1965-12-21(c)

Since defendant’s cross motion to dismiss the action was made on an affidavit and exhibits, the Special Term, upon a proper submission, would have been entitled to treat the motion as a motion for summary judgment and render judgment accordingly ... (CPLR 3211, subd. [c]), but the judgment directed herein in plaintiff's favor is not properly supported.

Under section 3211(c), conclusory allegations unsupported by facts do not raise a triable issue that prevents summary judgment.

Village of Baxter Estates v. G. N. M. Construction Co. · filed 1966-03-03(c)

Motion by defendants pursuant to CPLR 3211 (subd. [a], par. 7) for judgment dismissing the amended complaint herein and for summary judgment pursuant to CPLR 3211 (subd. [c]) is granted. ... The defendants are entitled to an order dismissing the complaint on the merits, and granting summary judgment to them.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when only questions of law are presented.

St. Lawrence University v. Trustees of the Theological School of St. Lawrence University · filed 1966-04-01(c)

Since there are only questions of law presented, pursuant to CPLR 3211 (subd. [c]), I treat this motion as one for summary judgment and grant judgment to the plaintiff.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment when the facts are undisputed and only questions of law remain.

Bathrick Enterprises, Inc. v. Murphy · filed 1966-04-15(c)

The underlying facts in the case at bar are undisputed. No issue of fact is present. Only questions of law are involved relative to the application of the statute. The court, in its discretion, will, therefore, treat this motion as a motion for summary judgment pursuant to CPLR 3211 (subd. [c]).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment.

Nagel v. Kummerow · filed 1966-05-18(c)

The motion to dismiss the complaint is treated as one for summary judgment (CPLR 3211, subd. [c]); and judgment is granted to the defendant Town of Walworth declaring that the said variance is in all respects valid.

CPLR 3211(c) permits a court to treat a motion to dismiss as one for summary judgment and order an immediate trial of factual issues, but that procedure does not apply when the issues are serious and require a lengthy hearing.

Stowell v. Berstyn · filed 1966-10-17(c)

While CPLR 2218 empowers the court to order that an issue of fact raised on a motion shall be separately tried, and while CPLR 3211 (subd. [c]) empowers the court to treat a motion to dismiss as one for summary judgment and to order an immediate trial of the issues raised on the motion, we are of the opinion that the ...sections do not apply where, as here, the issues as found by the court are serious and will require a lengthy hearing.

A court may consider an attorney’s factual allegation when deciding a motion to dismiss only if it treats the motion as one for summary judgment.

Baxter House, Inc. v. Rosen · filed 1967-03-20(c)

Such an allegation could have been considered only if Special Term had treated defendants’ motion as one for summary judgment (CPLR 3211, subd. [c]).

Section 3211(c) permits a court to treat a motion to dismiss a defense under subdivision (b) as a motion for summary judgment.

Blatz v. Benschine · filed 1967-04-04(c)

Inasmuch as CPLR 3211 (subd. [c]) permits the court, upon a motion made under subdivisions (a) or (b), to “ treat the motion as a motion for summary judgment ”, plaintiffs’ motion is so treated.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment when no questions of fact remain.

City of New York v. New York City Transit Authority · filed 1967-04-12(c)

Rather than dispose of the pending motions on the mere technical or procedural grounds urged by defendants, which would serve only to delay and postpone for a future day an inevitable resolution of these vital issues, the court deems it to be in the best interests of justice and the public welfare to treat these applications as motions for summary judgment (CPLR 3211, subd. [c]). Inasmuch as there are no questions of fact raised here, this procedure will enable the court to search the record and to make a final determination on the merits regarding the questions of law here involved which, undoubtedly, are of utmost significance and concern to the people of this city.

Section 3211(c) permits a court to direct a trial of an issue that cannot be resolved on a motion to dismiss.

Tata v. Town of Babylon · filed 1967-01-11(c)

The action boils down to the single issue, that the change of zone was not made in accordance with a comprehensive plan. Plaintiffs’ standing to sue is thus limited to that one issue, the determination of which will be determinative of the action. Therefore, we direct the trial of this issue (CPLR 3211, subd. [c]) before this court on the 30th day of January, 1967, starting at 9:30 a.m.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment in its discretion when the parties have sought summary judgment.

York v. City of New York · filed 1967-08-31(c)

Defendant’s notice of motion labels it as an application pursuant to CPLR 3211 (subd. [a], par. 7) to dismiss for insufficiency. Yet the prayer for relief in the accompanying affidavit is for summary judgment. Plaintiff has affirmatively requested in his opposing papers that summary judgment be rendered in his favor. In the court’s discretion this is treated as a motion for summary judgment pursuant to CPLR 3211 (subd. [c]).

Under CPLR 3211(c), summary judgment is denied when factual issues require trial.

Anti-Defamation League of B'nai B'rith v. American Italian Anti-Defamation League, Inc. · filed 1967-10-04(c)

The court views the record in this application as raising issues of fact which require resolution at a trial. Accordingly, plaintiff’s application for summary judgment in accordance with the provisions of CPLR 3211 (subd. [a]) is denied.

Section 3211(c) permits a court to treat a motion to dismiss for insufficiency as a motion for summary judgment when the parties submit evidence that could be considered on summary judgment.

Whitley v. Pacific Industries, Inc. · filed 1967-10-19(c)

Such a course was clearly indicated pursuant to CPLit 3211 (subd. [c]) which notes, in part, that on a hearing to dismiss for insufficiency ‘ ‘ either party may submit any evidence that could properly be considered on a motion for summary judgment and the court may treat the motion as a motion for summary judgment ”.

When a motion to dismiss is treated as a motion for summary judgment under § 3211(c), an affidavit lacking personal knowledge of material facts has no probative value.

Washington Fillmore Iron Works Inc. v. Klemp Corp. · filed 1968-02-22(c)

In treating this motion to dismiss as a motion for summary judgment, as required by CPLR 3211 (subd. [c]) we conclude that the affidavit by defendant’s attorney Pearlman, which provided the only basis for the court’s determination as to what part of the obligations sued on had been discharged by the article XI arrangement and what obligation arose after the arrangement, is without probative value. It does not appear that the affiant had personal knowledge of the date when the obligations alleged to have been discharged were incurred.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment when the parties submit evidence suitable for summary judgment.

Eastern Air Lines, Inc. v. Trans Caribbean Airways, Inc. · filed 1968-03-21(c)

The parties submitted evidence which properly could be considered on a motion for summary judgment. The court, therefore, treats the motion as a motion for summary judgment (CPLR 3211, subd. [c]; 3212, subd. [b]).

Section 3211(c) permits a court to treat a motion under section 3211 as one for summary judgment.

Mareno v. Kibbe · filed 1968-03-22(c)

Plaintiffs’ motion is therefore considered one for summary judgment CPLR 3211 (subd. [c]) and summary judgment is granted to defendants CPLR 3212 (subd. [b]), dismissing the first, second and third causes of action, with costs.

Section 3211(c) does not allow summary judgment before issue is joined, even when the papers present no triable issue.

Milk v. Gottschalk · filed 1968-01-08(c)

Although the papers present no triable issue, we may not award summary judgment in advance of the joinder of issue. (CPLR 3211, subd. [c]; 3212, subd. [a].)

An appellate court treated a motion to dismiss as one for summary judgment under § 3211, citing subdivision (e), without deciding questions of fact.

County Dollar Corp. v. Farkas · filed 1968-02-26(e)

Order of the Supreme Court, Westchester County, dated September 8, 1967, which denied appellant’s motion to dismiss the complaint, reversed, on the law, with $20 costs and disbursements; motion, treated as for summary judgment (CPLR 3211, subd. [e]), granted; judgment directed dismissing the complaint as to appellant, with costs; and action severed accordingly.

A motion to dismiss made on specific grounds does not put other challenges to a cause of action before the court for treatment as a motion for summary judgment.

Lanza v. Garco Export, Inc. · filed 1968-10-24(e)

This motion, made upon specific grounds, pursuant to CPLR 3211(a), does not properly bring before the court the questions as to the existence, terms and validity of the alleged compromise and settlement agreement and, therefore, we should not treat the motion as one for summary judgment generally challenging the cause of action thereon (see CPLR 3211, subd. [e]).

Section 3211(c) permits a court to treat a motion to dismiss a defense under section 3211(b) as a motion for summary judgment.

Greco v. Greco · filed 1968-11-04(c)

It is clear, further, on a motion to dismiss pursuant to CPLR 3211 (subd. [c]) that the court may treat a motion to dismiss a defense under CPLR 3211 (subd. [b]) as a motion for summary judgment and decide said motion accordingly.

An appellate court ordered a trial of issues raised on a motion to strike a defense, citing § 3211(e).

Giannelli v. Challenge Machinery Co. · filed 1968-07-01(e)

Order of the Supreme Court, Nassau County, dated November 16, 1967, which denied plaintiff’s motion to strike out the separate defense in the answer of defendant the Challenge Machinery Co., reversed, on the law and in the exercise of discretion, without costs, and motion remitted to Special Term for the purpose of conducting a trial of the issues raised on the motion (CPLR 3211, subd. [e]).

Before treating a motion to dismiss as one for summary judgment, the court should notify the parties so they can submit an appropriate record and arguments.

Mareno v. Kibbe · filed 1969-06-23(e)

In our opinion, Special Term should not on its own motion have treated plaintiffs’ motion as a motion for summary judgment as above described (CPLR 3211, subd. [e]). Ho request for summary judgment was made on behalf of respondents in the affidavit submitted in opposition to plaintiffs’ motion; and, though occasions will arise when summary judgment may properly be granted when motions to dismiss pleadings have been initially served (cf. 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3211.50), we think that the parties should be apprised of the court’s intention so to treat the pending motions before it prior to decision, so that an appropriate record and submission of the facts and law may be made by the parties.

Section 3211(c) permits a court to treat a motion to dismiss defenses as a motion for summary judgment.

Whitestone General Hospital v. Intramerica Life Insurance · filed 1969-08-25(c)

CPLR 3211 (subd. [c]) provides that a motion to dismiss defenses may be treated as a motion for summary judgment.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment.

Amaducci v. Metropolitan Opera Ass'n · filed 1969-10-16(c)

Therefore, the court can, pursuant to CPLR 3211, subd. [c], treat the motion as one for summary judgment and, under CPLR 3212, subd. [e], summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when a party submits evidence suitable for summary judgment.

Colon v. Bermudez · filed 1969-11-12(c)

CPLR 3211 (subd. [c]) provides that upon the hearing of a motion made pursuant to the provisions of CPLR 3211 (subd. [a]), if either party submits evidence which could properly be considered on a motion for summary judgment, the court may treat the motion as one for summary judgment. The court is of the opinion that the evidence submitted on this application warrants the court to treat the motion to dismiss the complaint as a motion for summary judgment.

An appellate court treated a motion to dismiss as one for summary judgment when the parties’ papers addressed whether triable issues existed, citing § 3211(e).

Skorge v. County of Nassau · filed 1969-12-08(e)

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. [e]), the motion has been treated as one for summary judgment.

Section 3211(c) permits the court to treat a motion supported by affidavits as a motion for summary judgment, requiring sufficient evidentiary facts to warrant a trial.

Cole Fisher Rogow, Inc. v. Carl Ally, Inc. · filed 1969-10-09(c)

However, treating the applications, made by the defendants on affidavits, as motions for summary judgment under CPLR 3211 (subd. [c]), the plaintiff has failed to state sufficient evidentiary facts, warranting a trial, to support its allegation that the defendants were motivated by malice.

Section 3211(c) allows a court to treat a motion to dismiss for failure to state a cause of action as a motion for summary judgment.

Lord v. Marine Midland Trust Co. · filed 1969-12-11(c)

Defendant’s motion to dismiss the complaint for failure to state a cause of action shall be treated as a motion for summary judgment under CPLB 3211 (subd. [c]), to be disposed of in conjunction with plaintiff’s motion for summary judgment.

Section 3211(c) does not permit a court to grant summary judgment before issue is joined.

Lustig v. Congregation B'Nai Israel · filed 1970-02-17(c)

Similarly, summary judgment under 3211 prior to joinder is also not permitted (Milk v. Gottschalk, 29 AD 2d 698). ... Accordingly, the fourth-party defendant will be directed to serve an answer to accomplish this purpose.

An appellate court treated a motion to dismiss as one for summary judgment and considered proof beyond the pleading, citing § 3211(e).

Articolor Graphic Co. v. After Hours Books, Inc. · filed 1969-04-21(e)

In so doing, the Special Term chose to exercise its power under the statute (CPLR 3211, subd. [e]) to treat the motion as a motion for summary judgment, for its determination was not directed to the sufficiency of the complaint as a pleading, on the assumption that all its allegations are true, but was made upon all of the proof adduced.

A court treated a motion against a petition as one for summary judgment and considered the petition and joining answers, citing § 3211(e).

In re the Estate of Gebbie · filed 1970-02-12(e)

The motion directed against the petition is deemed one for summary judgment (CPLR 3211, subd. [e] ), and all of the allegations of the petition and answers joining therein are properly considered upon this motion (Kelly v. Bank of Buffalo, 32 A D 2d 875; Millard v. Binkley Co., 28 A D 2d 620; Hamilton Print Co. v. Payne Corp., 26 A D 2d 876).

Section 3211(c) permits summary judgment before an answer only after the defendant has a full opportunity to show factual disputes; the motion must be denied if an answer could raise triable issues.

Kronish, Lieb, Shainswit, Weiner & Hellman v. John J. Reynolds, Inc. · filed 1970-02-17(c)

Furthermore, the proper application of CPLB 3211 (subd. [c]) requires that a defendant be afforded full opportunity to demonstrate the existence of bona fide issues of fact bearing upon the merits of a summary judgment sought by motion thereunder. The section should be applied to authorize judgment prior to the joinder of issue only in those cases where, after such opportunity, it clearly appears that there are no triable issues of fact. If it appears that an answer, when and if served, could raise triable issues, the motion should be denied, leaving the plaintiff to the remedy of a subsequent application under CPLR 3212.

Section 3211(c) allows a separable factual issue concerning a defense to be tried when resolving it may avoid a plenary trial.

Duboff v. Board of Higher Education · filed 1970-05-25(c)

It seems to us that the record presents a separable issue exceptionally well suited to resolution by the procedure provided in CPLR 3211 (subd. [c]), for if plaintiff be found to have been an employee at the time of his accident the need for a plenary trial will have been obviated.

Section 3211(c) permits a court to treat a motion to strike affirmative defenses as a motion for summary judgment on those defenses.

Weinstein v. Abraham · filed 1970-08-27(c)

Pursuant to CPLR 3211 (subd. [c]) the court treats this motion as one for summary judgment upon the affirmative defenses.

Section 3211(c) gives a court discretion to treat a motion to dismiss on any ground as a motion for summary judgment.

Schreck v. Raffaelli · filed 1970-09-03(c)

CPLR 3211 (subd. [c]) contains an extraordinary power discretionary with the court — the power to treat any motion, regardless of ground pursuant to CPLR 3211, as one for summary judgment.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the motion is supported by affidavits and the opposing party responds.

Glass v. Department of Health · filed 1970-11-25(c)

Since the latter motion is supported by affidavits to which plaintiff responded, the court will consider the motion as one for summary judgment (CPLR 3211, subd. [c]; Kronish, Lieb, Shainswit, Weiner & Hellman v. John J. Reynolds, Inc., 33 A D 2d 366; Skorge v. County of Nassau, 33 A D 2d 782).

Motions for summary judgment made before joinder of issue are deemed motions to dismiss, but may be treated as summary judgment motions on appropriate papers.

Slevin v. Long Island Jewish Medical Center · filed 1971-04-06(c)

The church and the hospital move here for summary judgment in that injunction action and, in turn, the neighbors cross-move for summary judgment themselves. Technically, such motions made before joinder of issue are deemed motions to dismiss the complaint, but may be treated on appropriate papers as motions for summary judgment. (See CPLR 3211, subd. [c]; 3212.)

Section 3211(c) permits a court to search the record and dismiss a defective complaint on a motion to dismiss defenses.

Westchester Federal Savings & Loan Ass'n v. Secor Lake Camp, Inc. · filed 1971-06-21(c)

We feel, on the record before us, that Special Term should have “searched the record” in accordance with CPLR 3211 (subd. [c]) and dismissed the complaint.

CPLR 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when it considers evidence submitted by both sides.

City of Rye v. Ronan · filed 1971-10-26(c)

In support of their motion, defendants have submitted various documents, including certified copies of pertinent entries in the official Assembly Journal as well as other papers, and opposing affidavits have also been submitted by plaintiffs, and the court has considered the evidence presented by both sides, treating the motion as one for summary judgment in accordance with CPLR 3211 (subd. [c]).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment.

Epstein v. Kernon · filed 1971-11-09(c)

Its motion is actually one for summary judgment under CPLR 3212, and I shall so consider it, as I may under CPLR 3211 (subd. [c]).

Section 3211(c) permits a court to grant a cross motion for partial summary judgment.

Board of Cooperative Educational Services v. Goldin · filed 1972-02-14(c)

Special Term, in any event, was empowered to grant the cross motion for partial summary judgment pursuant to subdivision (c) of CPLR 3211 (Kronish, Lieb v. John J. Reynolds, Inc., 33 A D 2d 366; Mareno v. Kibbe, 32 A D 2d 825).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment when the motion follows joinder of issue and relies on affidavits as well as the pleadings.

Shoenfeld v. Fontek · filed 1971-09-03(c)

Since this motion is made after joinder of issue and upon affidavits concerning the facts as well as upon the pleadings, the court shall treat it as a motion for summary judgment (CPLR 3211, suhd. [c]).

An immediate trial under CPLR 3211(c) is unwarranted when the record raises no factual issue; the motion to dismiss may instead be granted.

Kaehler v. Phoenix Insurance · filed 1971-12-09(c)

Special Term found that a question of fact had been raised as to whether defendant waived the Statute of Limitations and ordered “ immediate trial, by the court, of said issue, pursuant to CPLR 3211 (c).” ... However, there is nothing in the record sufficient tó raise a factual issue as to waiver or estoppel, and defendant’s original motion to dismiss should have been granted.

CPLR 3211(c) permits a court to treat a motion to dismiss as one for summary judgment.

Beljac Holding Corp. v. State · filed 1973-01-03(c)

While the relief sought by the State is a dismissal, the motion will be treated as one for .summary judgment pursuant to subdivision (c) of CPLR 3211 (Rapoport v. Schneider, 29 N Y 2d 396; Epps v. Yonkers Raceway, 21 A D 2d 798; Rager v. Lefkotvits, 20 A D 2d 867).

CPLR 3211(c) permits a motion to dismiss to be treated as a motion for summary judgment.

Knickerbocker Field Club v. Site Selection Board · filed 1973-01-08(c)

A motion to dismiss a proceeding, pursuant to CPLR 32ll i¡subd. [a]) may be treated as one for summary judgment (CPLR 3211, subd. [c]).

Section 3211(c) permits a court that grants a motion to dismiss one or more defenses to treat the motion as one for summary judgment.

Klein v. Klein · filed 1972-07-28(c)

CPLR 3211 (subd. [c]) permits the court, when a motion is granted to dismiss one or more defenses, to treat the motion as one for summary judgment.

Section 3211(c) precludes summary disposition when the parties raise factual issues.

Rosemont Enterprises, Inc. v. Choppy Productions, Inc. · filed 1972-12-01(c)

The factual issues raised by the parties preclude summary disposition of this cause of action (CPLR 3211, subd. [c]).

Section 3211(c) permits a motion to dismiss to be treated as one for summary judgment, with an immediate trial of the issues raised.

Purta v. Cisz · filed 1973-06-18(c)

This is a proper case for the application of CPLR 3211 (subd. [c]). The motion should have been treated as one for summary judgment, with an immediate trial of the issues raised.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment when the moving parties submit evidentiary material.

Kocsor v. Eastland · filed 1974-05-16(c)

In an action for breach of warranty, fraud and conspiracy, defendants Eastland and Featherstone appeal from so much of an order at Special Term that treated .their motion to dismiss the complaint as a motion for summary judgment and denied same. Since evidentiary material was submitted by defendants and other moving parties, this procedure was proper.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment and consider factual material, even when the plaintiff has submitted no evidentiary affidavit.

Levine v. Chavkin · filed 1974-11-08(c)

However, upon the insistence of the defendants, the court will consider the factual matter contained in the affidavit, and the prior proceedings before this court and undertake to treat the motion as one for summary judgment (CPLR 3211, subd [c]) despite the absence of any evidentiary affidavit submitted on behalf of the plaintiff.

Section 3211(c) permits an immediate trial of a threshold jurisdictional issue raised on a motion to dismiss.

Kahn v. Kahn · filed 1974-10-29(c)

In view of the substantial pendente lite relief requested and the likelihood of a bitterly contested trial of the substantive issues to be determined, we believe the threshold jurisdictional question should first be expeditiously resolved.

Section 3211(c) permits a court, after adequate notice to the parties, to treat a motion to dismiss as a motion for summary judgment.

Surrey Strathmore Corp. v. Dollar Savings Bank · filed 1975-02-27(c)

Since a September 1, 1973 amendment of CPLR 3211 (subd. [c]), a court "after adequate notice to the parties, may treat the motion as a motion for summary judgment."

CPLR 3211(c) allows a court to treat a motion to dismiss as one for summary judgment after notifying the parties.

Schenectady Trust Co. v. Estate of August Sciocchetti · filed 1975-03-26(c)

The court, in effect, has consolidated these motions by notifying the parties that it would treat defendant’s motion as one for summary judgment (CPLR 3211, subd [c]).

CPLR 3211(c) requires notice before a motion to dismiss may be treated as one for summary judgment.

Wein v. City of New York · filed 1975-04-17(c)

In the context of CPLR 3211 (subd [c]), although the motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) may not be considered as one for summary judgment because of the absence of notice, the present record containing evidence that could be considered on a motion for summary judgment, warrants concluding that plaintiff has failed to state a cause of action.

CPLR 3211(c) permits a court to convert a dismissal motion into a summary judgment motion.

Wein v. City of New York · filed 1975-05-27(c)

Plaintiff himself specifically asked for judgment pursuant to CPLR 3211 (subd [c]), which converts the dismissal motion into a summary judgment motion, in his affidavit in opposition to defendant’s motion, so he can hardly be heard to complain that the court should not have treated the motion in that fashion.

Section 3211(c) permits a motion to dismiss for failure to state a cause of action under subsection (a)(7) to be treated as a motion for summary judgment.

Schwartz v. Andrews · filed 1975-12-05(c)

A motion to dismiss for failure to plead a cause of action pursuant to CPLR 3211 (subd [a], par 7) may be treated as a motion for summary judgment (CPLR 3211, subd [c]).

Section 3211(c) permits consideration of a request for partial summary judgment before a formal answer when the defendant has had a full opportunity to show genuine issues of law or fact.

Cadplaz Sponsors, Inc. v. Cadman Towers, Inc. · filed 1975-11-19(c)

Plaintiffs application will be considered despite lack of service of a formal answer, as an application under CPLR 3211 (subd [c]) inasmuch as the defendant, in the voluminous affidavits, exhibits and memoranda submitted on the various motions before the court, has been afforded a full opportunity to demonstrate the existence of bona fide issues of law and fact bearing on the merits (Kronish, Lieb, Shainswit, Weiner & Hellman v John J. Reynolds, Inc., 33 AD2d 366; cf. Milk v Gottschalk, 29 AD2d 698).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment.

Lieb v. Lieb · filed 1976-03-04(c)

The instant motion attempts to utilize the device of a CPLR 3211 pre-answer motion to dismiss based on the same grounds. While such relief is technically unavailable, the court will instead treat the motion as one for summary judgment. (CPLR 3211, subd [c].)

When a motion to dismiss is not treated as one for summary judgment under CPLR 3211(c), the court considers the petition’s allegations, not the merits.

Associated Builders & Owners of Greater New York, Inc. v. Rent Guidelines Board · filed 1976-03-04(c)

Special Term did not treat the application as one for summary judgment pursuant to CPLR 3211 (subd [c]). We have, therefore, considered only the allegations of the petition and not the merits.

Section 3211(c) does not permit a court to convert a motion to dismiss into one for summary judgment on its own initiative without informing the parties when no one requested that relief.

Black v. Long Island Railroad · filed 1976-09-27(c)

Special Term should not, on its own initiative, have treated the motion to dismiss the third-party complaint, made pursuant to CPLR 3211 (subd [a], par 7), as one for summary judgment under CPLR 3211 (subd [c]). No request for that relief was made in the affidavits and there is no indication in the record on this appeal that the parties were informed of the court’s intention to so treat the pending motion "so that an appropriate record and submission of the facts and law might be made by the parties” (see Mareno v Kibbe, 32 AD2d 825).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment.

Scavone v. Kings Craft Corp. · filed 1976-12-10(c)

Defendant’s motion to dismiss the complaint was properly treated by Special Term as a motion for summary judgment (CPLR 3211, subd [c]).

CPLR 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment only after giving the parties adequate notice.

Town of Huntington v. Town of Oyster Bay · filed 1976-12-20(c)

A motion to dismiss pursuant to CPLR 3211 (subd [a]) may be considered by the court as a motion for summary judgment pursuant to CPLR 3211 (subd [c]) only after adequate notice to the parties.

Section 3211(c) permits a motion to dismiss to be treated as a motion for summary judgment when the parties agree there are no issues of fact.

Frank H. Hiscock Legal Aid Society v. City of Syracuse · filed 1977-02-11(c)

Petitioner then requested that pursuant to CPLR 3211 (subd [c]) respondent’s motion to dismiss be treated as a motion for summary judgment. ... A conference was held at which both parties agreed that there were no issues of fact and that respondent’s motion would be treated as a motion for summary judgment.

Section 3211(c) permits a motion under subdivision (a) or (b) to be treated as a motion for summary judgment.

Sloame v. Madison Square Garden Center, Inc. · filed 1977-02-15(c)

While a motion pursuant to CPLR 3211 (subds [a] or [b]) could be considered and treated as a motion for summary judgment (as provided by CPLR 3211, subd [c]), there is no corresponding provision in CPLR 3212.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the parties have adequate notice and an opportunity to respond.

Safeco Insurance Co. of America v. State · filed 1977-03-15(c)

In accordance with claimant’s request and pursuant to CPLR 3211 (subd [c]), the court now treats the motion as one for summary judgment, the parties having had adequate notice thereof at the argument on February 8, 1977 and have responded thereto.

Granting summary judgment on a CPLR 3211(a) motion to dismiss ordinarily requires reversal, but the appellant may waive that procedural error.

Novak & Co. v. Travelers Indemnity Co. · filed 1977-03-28(a)

Although the action of Special Term in granting summary judgment where the defendant had moved only for dismissal pursuant to CPLR 3211 (subd [a]) would ordinarily require a reversal of the order appealed from under the recent decision of the Court of Appeals in Rovello v Orofino Realty Co. (40 NY2d 633), the appellant, on oral argument, waived this procedural error and expressly asked that we reach and determine the decisive substantive issue of whether it may recover as a third-party beneficiary under the performance and payment bonds issued by the defendant.

A CPLR 3211 motion may be treated as one for summary judgment when the parties have treated it that way in their affidavits and appellate briefs.

Maybrown v. Malverne Distributors, Inc. · filed 1977-04-04

We note that although the defendants’ motion sought dismissal of the complaint pursuant to CPLR 3211, Special Term, the affidavits of the parties at Special Term, and the briefs on appeal have treated the motion as though it were one for summary judgment. There is, therefore, no reason for us not to treat the motion as such (cf. Rovello v Orofino Realty Co., 40 NY2d 633; compare Cullen v Naples, 31 NY2d 818).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment after notifying the parties and allowing them to submit relevant material.

Capelle v. Makowski · filed 1977-04-04(c)

The nature of the lawsuit and the pleadings presented to the court indicated that the motion should be treated as one for summary judgment. ... We gave notice of our intention, pursuant to CPLR 3211 (subd [c]), to each party with leave to submit whatever material they deemed relevant.

Section 3211(c) permits summary judgment on a dismissal motion when the dispositive issue can be resolved without deciding disputed facts.

Helms v. Reid · filed 1977-05-11(c)

Since there are no factual issues presented concerning the main issue presented in the second cause of action as set forth above, this issue must be met and determined by the court. ... As far as can be determined in the instant action, the Master Plan is constitutional, as a matter of law, and summary judgment pursuant to CPLR 3211 (subd [c]), dismissing the second cause of action, should be granted to defendants.

Section 3211(c) cannot be used to obtain summary judgment on an unpleaded account stated claim as a substitute for a CPLR 3213 motion.

Howard v. Shelter Programs, Inc. · filed 1977-05-16(c)

The plaintiff cannot use CPLR 3211 (subd [c]) to accomplish what it cannot achieve under CPLR 3213.

Section 3211(c) requires notice to the parties before a motion to dismiss is treated as a motion for summary judgment.

Iandoli v. Asiatic Petroleum Corp. · filed 1977-05-26(c)

While the motion could have been treated as one for summary judgment, Special Term did not give the required notice to the parties that it would be so treated (CPLR 3211, subd [c]).

CPLR 3211(c) requires the court to give the parties proper notice before converting a motion to dismiss for failure to state a cause of action into a summary judgment motion.

Duffy v. Cross Country Industries, Inc. · filed 1977-05-27(c)

CPLR 3211 (subd [c]), however, does not permit Special Term to convert a motion under CPLR 3211 (subd [a], par 7) to a summary judgment motion without a proper notice by the court to the parties that Special Term elects to treat the motion as one for summary judgment.

A court converting a CPLR 3211 motion to one for summary judgment must give the parties adequate notice, but inadequate initial notice did not warrant relief where the issue was not raised on appeal and the parties had notice by reargument.

Suffolk Off-Track Betting Corp. v. State Racing & Wagering Board · filed 1977-06-06(c)

In addition, we would point out that although Special Term elected to treat the motion to dismiss the complaint pursuant to CPLR 3211 (subd [a]) as one for summary judgment without first providing adequate notice to the parties (see CPLR 3211, subd [c]; Rovello v Oroñno Realty Co., 40 NY2d 633), neither party raised the issue on this appeal and both parties were on notice of such treatment at the time of the motion for reargument.

Section 3211(c) requires adequate notice to the parties before a court treats a motion to dismiss as a motion for summary judgment, so they have an opportunity to submit further papers.

Gronim v. Dessau · filed 1977-06-30(c)

Procedurally, we note that when the court elects to treat a motion to dismiss as a motion for summary judgment, it may do so only on adequate notice to the parties (CPLR 3211, subd [c]), which would afford an opportunity for further submission of papers. This procedure was not followed in the case at bar.

Section 3211(c) requires adequate notice to the parties before a court treats a motion to dismiss as a motion for summary judgment, so they can submit further papers.

Charitable Promotions v. Anka · filed 1977-07-07(c)

... when the court elects to treat a motion to dismiss as a motion for summary judgment, it may do so only on adequate notice to the parties in order to afford an opportunity for submission of ... further papers.

Section 3211 does not govern motions for summary judgment; CPLR 3212 governs those motions.

Di Giacomo v. City of New York · filed 1977-07-14

The statement having been served and the matter restored to the calendar, petitioners moved for summary judgment. Respondents cross-moved for summary judgment. CPLR 3212 and not CPLR 3211 is involved.

CPLR 3211(c) permits a court to treat motions to dismiss as motions for summary judgment when the parties submit affidavits and no material issues of fact remain.

Fullilove v. Carey · filed 1977-08-26(c)

The petitioners and respondent division having submitted affidavits in support of their respective positions and both respondents having moved for judgment declaring that Executive Order No. 45 is constitutional, the court will consider the respondents’ motions as motions for summary judgment involving no material issues of fact. (CPLR 3211, subd [c]; Uniformed Fireman’s Benevolent Assn. v Herten, 23 AD2d 788.) Accordingly, summary judgment is granted in favor of petitioners.

Section 3211(c) does not require summary judgment notice merely because the court considers evidence submitted on a motion to dismiss.

Aquilina v. O'Connor · filed 1977-12-08(c)

Contrary to plaintiff’s assertion, Special Term did not treat defendant’s motion as one for summary judgment in the absence of adequate notice to him (CPLR 3211, subd [c]). It properly considered the evidence submitted by the parties and correctly decided that, although plaintiff’s pleading spelled out a typical breach of contract claim, in reality plaintiff had no cause of action under the facts alleged.

Section 3211(c) requires adequate notice before a court converts a motion to dismiss for failure to state a cause of action into a summary judgment motion, even on the court’s own initiative.

Guggenheimer v. Ginzburg · filed 1977-12-15(c)

If it be deemed that Special Term granted summary judgment in favor of defendant, in so doing it disregarded CPLR 3211 (subd [c]), as amended, which so far as pertinent requires that upon a motion for dismissal upon the ground that the pleading fails to state a cause of action, under paragraph 7 of subdivision (a), the court, "after adequate notice to the parties”, may treat the motion as one for summary judgment. Since there was no notice, there could be no conversion to a summary judgment motion, even on the court’s initiative, and the affidavits were received for a limited purpose only, a purpose unconnected with summary judgment (see Rovello v Oroñno Realty Co., 40 NY2d 633, 636).

Section 3211(c) requires adequate notice before a court treats a motion to dismiss as a motion for summary judgment.

Kingsbay Housing Co. v. Hoffman · filed 1978-02-21(c)

Special Term, pursuant to CPLR 3211 (subd [c]), decided to treat defendants-appellants’ motion to dismiss the complaint under CPLR 3211 (subd [a], pars 2, 7), which was made prior to the service of their answer, as a motion for summary judgment. The court then granted summary judgment against defendants. However, it does not appear from this record that defendants were given adequate notice of Special Term’s intention to treat the motion as one for summary judgment. Such notice is required and the failure to give it necessitates the reversal of the order and judgment insofar as it has been appealed from (see Rovello v Orofino Realty Co., 40 NY2d 633; Mareno v Kibbe, 32 AD2d 825), even though it may well be that defendants have no defense on the merits (cf. Luna Park Housing Corp. v Besser, 38 AD2d 713; Brigham Park Coop. Apts. Section No. 2 v Krauss, 21 NY2d 941; Linden Hill No. 2 Coop, v Leskowitz, 41 AD2d 741, affd 34 NY2d 580; Kings Bay Houses, Section Two v Malkis, 50 AD2d 860).

Section 3211(c) permits a court to convert a motion to dismiss into a motion for summary judgment when the facts are undisputed and the parties have extensively briefed and argued the issues.

Saxton v. Carey · filed 1978-03-29(c)

In the instant case, the facts are undisputed and the parties have extensively briefed and argued the constitutionality of the budget and accompanying appropriation bills. Consequently, even though the present appeal is from an order granting a motion to dismiss, the court will proceed to convert the motion to dismiss to a motion for summary judgment and grant the judgment which Special Term could or should have granted (CPLR 3211, subd [c]; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.44; Matter of Knickerbocker Field Club v Site Selection Bd. of City of N. Y., 41 AD2d 539).

CPLR 3211(c) requires notice before a motion to dismiss is treated as one for summary judgment; an opportunity to argue the merits on reargument can cure the lack of notice.

O'Hara v. Del Bello · filed 1978-04-17(c)

Without giving notice to the parties of its intention to do so, Special Term in effect treated appellants’ motion to dismiss as one for summary judgment and granted judgment in favor of the petitioner. This was error (see CPLR 3211, subd [c]). However, appellants moved for reargument, at which time they had a full and fair opportunity to argue the merits of the controlling question of law. Upon granting reargument, Special Term adhered to its original determination in favor of petitioners. Under these circumstances the error was cured and a reversal on procedural grounds is not required.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the movant requests it and no factual questions require a hearing.

County of Franklin v. Connelie · filed 1978-05-24(c)

The court verily believes that it is proper to treat this motion brought by the defendants as one for summary judgment pursuant to CPLR 3211 (subd [c]). Of prime importance is that the defendants have requested the court to do so and there are no fact questions to be determined only after a lengthy hearing which would prevent summary judgment.

CPLR 3211(c) requires prior notice to the parties before a motion to dismiss is treated as a motion for summary judgment.

Broughton v. City of New York · filed 1978-05-25(c)

Even though the parties in their submission below have addressed the merits of this action, and Special Term understandably, in the light of the confusing character of that submission, considered the merits of this action, we conclude that it would be error to treat the defendant’s motion under CPLR 3211 (subd [a], par 7) as one for summary judgment without the prior notification to the parties explicitly required ...by CPLR 3211 subd [c] (see Rovello v Orofino Realty Co., 40 NY2d 633; cf. Monteferrante v New York City Fire Dept., NYLJ May 11, 1978, p 6, col 4).

Section 3211(c) permits a court to treat a motion to dismiss for failure to state a cause of action as one for summary judgment when the motion is entertained on affidavits.

Hedman v. City of Rochester · filed 1978-07-13(c)

The motion to dismiss the complaint for failure to state a cause of action under CPLR 3211 (subd [a], par 7) was entertained on affidavits and was properly treated by Special Term as one for summary judgment for dismissal of the complaint under CPLR 3211 (subd [c]).

Section 3211(c) requires adequate notice to the parties before a court treats a motion to dismiss as one for summary judgment.

Hondzinski v. County of Erie · filed 1978-07-13(c)

Even CPLR 3211 (subd [c]) requires that if the court intends to treat the motion as one for summary judgment, it must give "adequate notice to the parties” that it so intends ... and Special Term failed to do this.

A motion invoking CPLR 3211(a)(7) may be treated as seeking both dismissal and summary judgment when the papers seek both and the opposing party responds with awareness of both.

Monteferrante v. New York City Fire Department · filed 1978-05-09(a)(7)

The motion was clearly and properly treated by Special Term in its hybrid aspect, that is, as one for summary judgment and for dismissal under CPLR 3211 (subd [a], par 7).

Section 3211(c) requires notice and an opportunity to make an appropriate record before a motion to dismiss may be treated as one for summary judgment.

Guiltinan v. Columbia Presbyterian Medical Center · filed 1978-09-28(c)

The prior decision could not have treated the prior motion as one for summary judgment without affording the parties notice of such election and the opportunity to make an appropriate record. (CPLR 3211, subd [c]; Rovello v Orofino Realty Co., 40 NY2d 633.)

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment.

American Home Assurance Co. v. Scarsdale National Bank & Trust Co. · filed 1978-10-16(c)

Defendant concedes that such a motion to dismiss may be treated as one for summary judgment (CPLR 3211, subd [c]); and this court treats it as such.

A pre-answer motion under section 3211 is not a summary judgment motion unless the court converts it under subdivision (c).

Adler Construction Co. v. County Holding Corp. · filed 1978-12-11(c)

...made prior to the joinder of issue, it was not, as appellant appears to assume, a motion for summary judgment, nor was it converted into such a motion by the court pursuant to CPLR 3211 (subd [c]) (see, also, Rovello v Oroñno Realty Co., 40 NY2d 633).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment when the record contains sufficient facts.

National Elevator Industry, Inc. v. State Tax Commission · filed 1978-12-28(c)

However, upon this record we find sufficient facts were before the court to treat the motion to dismiss as a motion for summary judgment (CPLR 3001; 3211, subd [c]; 3212; cf. Matter of State Div. of Human Rights v New York State Police, 77 Misc 2d 597).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment upon notice; when all parties have submitted evidentiary affidavits, further notice may be superfluous.

Holy Spirit Ass'n for the Unification of World Christianity v. Harper & Row, Publishers, Inc. · filed 1979-01-09(c)

Insofar as plaintiff contends that the motion for summary judgment is premature, again we are dealing with a nonprejudicial technical defect in view of the fact that the court is specifically empowered pursuant to CPLR 3211 (subd [c]) to treat a motion to dismiss as a motion for summary judgment, upon notice to the parties. ... As all parties have submitted evidentiary affidavits, further notice would be superfluous.

Section 3211(c) allows a court to treat a motion to dismiss as one for summary judgment.

Snyder Construction Co. v. State · filed 1979-04-30(c)

The court will treat the defendant’s motion as one for summary judgment pursuant to CPLR 3211 (subd [c]).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment only after notifying the parties of that intended treatment.

Shah v. New York Foundling Hospital · filed 1979-04-30(c)

While CPLR 3211 (subd [c]) authorizes a court to treat a motion to dismiss as a motion for summary judgment, it must first notify the parties that it intends to do so (CPLR 3211, subd [c]; Rovello v Orofino Realty Co., 40 NY2d 633; Mareno v Kibbe, 32 AD2d 825).

A court may affirm summary judgment granted on a CPLR 3211 motion without subdivision (c) notice when no material facts are disputed, the parties fully argued the legal issue, and the party lacking notice shows no prejudice.

O'HARA v. Del Bello · filed 1979-06-12(c)

With respect to respondents' claim that, absent notice as prescribed by CPLR 3211 (subd [c]), summary judgment should not have been granted to petitioner on their motion to dismiss the petition under paragraphs 2 and 7 of subdivision (a) of that section, we note that there were no disputed questions of fact, that none were identified when their motion for reargument was entertained, and that the sole issue was one of statutory construction on which rested the right to reimbursement from the county of travel expenses incurred by a court stenographer, the precise question fully addressed by the parties on the motion to dismiss. Additionally, the county officials have failed to show how they have been prejudiced by their failure to receive notice under subdivision (c). In these circumstances we cannot say that it was error as a matter of law for the Appellate Division to have affirmed the summary judgment granted below.

Section 3211(c) permits a motion to dismiss to be treated as a motion for summary judgment when adequate notice and supporting proof are provided.

Franklin v. Pee Dee Jay Amusement Co. · filed 1979-08-07(c)

Special Term properly treated plaintiff’s motion to dismiss the affirmative defenses and counterclaim as one for summary judgment. The plaintiff submitted sufficient documentary proof that he had loaned the defendants $21,000 pursuant to an agreement executed between the parties and that defendants, although given sufficient notice, defaulted in repaying the loan (see CPLR 3211, subd [c]).

Section 3211(c) requires formal notice before a court treats a motion to dismiss as a motion for summary judgment.

Gordon v. Metropolitan Life Insurance · filed 1979-12-14(c)

Since formal notice that the court intended to treat the motions to dismiss the complaints (CPLR 3211, subd [a], par 7) as motions for summary judgment was not given to the appellants (CPLR 3211, subd [c]), Special Term erred insofar as it purported to treat the motions as ones seeking summary judgment.

Section 3211(c) permits the court to treat a motion to dismiss as one for summary judgment after notifying the parties and allowing submission of appropriate evidence.

Capalongo v. Giles · filed 1980-02-02(c)

Although the motion is made under CPLR 3211 (subd [a], par 7) to dismiss the complaint on the ground that it fails to state a cause of action, the court is authorized under subdivision (c) of that section to "treat the motion as a motion for summary judgment”, and has so advised the parties and an opportunity afforded them to "submit any evidence that could properly be considered on a motion for summary judgment”, in accordance with the subdivision.

Section 3211(c) requires notice before a motion to dismiss is treated as a motion for summary judgment, allowing the parties to submit additional proof.

State Board of Equalization & Assessment v. Kerwick · filed 1980-01-31(c)

Nevertheless, in so acting the court must notify the parties of its intention to make a summary determination, thus enabling them to submit additional proof in support of their positions (CPLR 3211, subd [c]; see Mareno v Kibbe , 32 AD2d 825; Siegel, New York Practice, § 270, p 328).

Section 3211(c) requires adequate notice to both parties before a motion to dismiss is converted into a motion for summary judgment.

Richmond County Savings Bank v. Roccisano Contracting Corp. · filed 1980-05-12(c)

However, Special Term improperly deemed plaintiff’s motions to be motions for summary judgment because the court failed to comply with the notice requirements of CPLR 3211 (subd [c]). The procedural condition precedent for such a conversion, i.e., adequate bilateral notice of same, was necessary to provide the requisite notice of prospective summary judgment treatment to plaintiff and appellant.

Section 3211(c) permits a motion to dismiss to be treated as a summary judgment motion only with the required notice to the parties.

Schnur v. Mehl · filed 1980-05-27(c)

In affirming, we note that the motion to dismiss was converted to one for summary judgment without the required notice to the plaintiffs (see Rovello v Orofino Realty Co., 40 NY2d 633).

CPLR 3211(c) requires adequate notice before a motion to dismiss is treated as a motion for summary judgment.

Aronoff v. Albanese · filed 1980-03-03(c)

“A motion to dismiss pursuant to CPLR 3211 (subd [a]) may not be treated as one for summary judgment without adequate notice to the parties (CPLR 3211, subd [c]; Rovello v Orofino Realty Co., 40 NY2d 633). The record reveals no such notice”

Section 3211(c) permits a motion to dismiss to be treated as a motion for summary judgment.

Wood v. Wood · filed 1980-04-22(c)

Respondent’s motion to dismiss the support petition is hereby treated as a motion for summary judgment pursuant to CPLR 3211 (subd [c]).

Section 3211(c) permits a court to decline to treat a motion to dismiss as one for summary judgment.

New York State Office of Parks & Recreation v. Vantage Petroleum Corp. · filed 1980-08-19(c)

The court declines to treat the plaintiffs’ motion as one for summary judgment (CPLR 3211, subd [c] ; Rovello v Orofino Realty Co., 40 NY2d 633), and there are triable issues of fact in any event.

Subsection (c) requires notice to the parties before a motion to dismiss is treated as a motion for summary judgment.

Strauss v. Strauss · filed 1980-09-29(c)

While Special Term apparently treated the motion as one for summary judgment, it did not notify the parties of its intention to do so (see CPLR 3211, subd [c]; see, also, Rubin v Rubin, 72 AD2d 536; Shah v New York Foundling Hosp., 69 AD2d 899).

Section 3211(c) permits a court to treat a motion addressed to the pleadings as one for summary judgment only after adequate notice to the parties.

Internacional v. Intershoe, Inc. · filed 1980-07-31(c)

While CPLR 3211 (subd [c]) gives the court the power to treat a motion addressed to the pleadings as one for summary judgment, it may do so only "after adequate notice to the parties”.

Section 3211(c) requires notice before a motion to dismiss is converted into a motion for summary judgment.

211 West 56th Street Associates v. Department of Housing Preservation · filed 1980-11-06(c)

If a motion to dismiss is made pursuant to CPLR 3211 (subd [a]) or 3211 (subd [b]), notice of the court’s intention to convert the motion into one for summary judgment must be given to the parties. (CPLR 3211, subd [c].)

Section 3211(c) governs when a motion to dismiss may be treated as a motion for summary judgment.

Hosid v. Wilson · filed 1980-09-12(c)

We agree that Special Term should not have treated defendants’ motion to dismiss for failure to state a cause of action as one for summary judgment in the circumstances of this case (CPLR 3211, subd [c]).

Section 3211(c) permits a dismissal motion to be treated as one for summary judgment when the parties have sufficient notice of that treatment.

Goldstein v. County of Monroe · filed 1980-11-13(c)

The record indicates that Special Term treated the motion as one for summary judgment with the implied knowledge and assent of the plaintiff who may not now assert that she failed to receive "adequate notice” of this treatment by the court (CPLR 3211, subd [c]).

Section 3211(c)’s notice requirement is satisfied when the parties submit evidence and have a full and fair opportunity to argue the controlling issue; summary judgment may then be granted if no factual question remains.

Hyman v. Hillelson · filed 1980-12-04(c)

Since the parties submitted evidentiary material in the form of affidavits and documents on both the original motion and the reargument motion, and had a full and fair opportunity to argue the merits of the controlling question of law, the purpose of the notice requirement of CPLR 3211 (subd [c]) has been served, and summary judgment is appropriate since no questions of fact exist (cf. O’Hara v Del Bello, 47 NY2d 363, 367-368).

Section 3211(c) requires notice to the parties before a court converts a motion to dismiss into a motion for summary judgment and grants summary judgment.

Monarch Liquor Corp. v. Merinoff · filed 1980-12-23(c)

On their cross motions defendants submitted evidence which could properly be considered on a motion for summary judgment (CPLR 3211, subd [c] ), and asked the court to grant summary judgment. Special Term failed to give notice to the parties that the cross motions were converted into motions for summary judgment.

On a CPLR 3211(a)(7) motion, a plaintiff need not rebut allegations in the defendant’s affidavits unless the court gives adequate notice and converts the motion to summary judgment.

Macey v. New York State Electric & Gas Corp. · filed 1981-02-05(a)(7)

Such a standard does not apply on a motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 7) unless it is converted, upon adequate notice to the parties, to a motion for summary judgment (Rovello v Orofino Realty Co., 40 NY2d 633, 635, 636).

Section 3211(c) permits the court to declare the parties’ rights before issue is joined when the parties seek summary treatment and no factual issues remain.

Grayshaw v. New Amsterdam Apartments Co. · filed 1981-01-30(c)

If the parties desire to approach the issues in summary fashion prior to joinder of issue (cf. CPLR 3212, subd [a]) and, if there are no issues of fact, there is no reason for the court not to declare the rights of the parties as demanded in the complaint (CPLR 3211, subd [c]).

Section 3211(c) requires adequate notice before a motion to dismiss is converted to a motion for summary judgment when factual questions remain.

Investors Insurance Co. of America v. Gorelick · filed 1981-03-27(c)

There, as here, the motion under CPLR 3211 had not been converted into a motion for summary judgment “after adequate notice to the parties” (CPLR 3211, subd [c], as amd, eff Sept. 1,1973). ... Had the motion to dismiss been properly converted to a motion for summary judgment by adequate notice, the plaintiff would have indeed been required to come forth with an evidentiary showing.

Under CPLR 3211(c), a party who understands that a dismissal motion may be treated as one for summary judgment and responds by identifying factual disputes cannot complain that the court gave no notice of conversion.

Shapiro v. Prudential Insurance Co. of America · filed 1981-04-27(c)

Defendant’s motion was made pursuant to CPLR 3211 (subd [a], pars 1, 7; subd [c]). ... Under these circumstances the plaintiff may not now complain that the court failed to provide notice of its intent that it would treat the motion as one for summary judgment.

Section 3211(c) requires proper notice to the parties before a court converts a motion to dismiss into one for summary judgment.

State Board of Equalization & Assessment v. Kerwick · filed 1981-04-30(c)

While we disagree with this argument that article 7 was the State’s exclusive remedy (see Matter of Dudley v Kerwick, 52 NY2d 542, [decided herewith]), we conclude nonetheless that reversal of the order of Special Term was appropriate for the additional reason relied on by the Appellate Division, that Special Term erroneously converted a motion to dismiss into one for summary judgment, without proper notice to the parties of its intent to do so (see CPLR 3211, subd [c]).

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment when the parties consent.

Albino v. City of New York · filed 1981-05-04(c)

Upon the argument of this appeal, the parties have consented to our converting the motion into one for summary judgment pursuant to CPLR 3211 (subd [c]) (cf. O’Hara v Del Bello, 47 NY2d 363, 367-368; Schnur v Mehl, 75 AD2d 890, 891; Maybrown v Malverne Distrs., 57 AD2d 548, 549, mot for lv to app den 42 NY2d 804). We affirm.

Section 3211(c) requires notice to the parties before a court treats a motion to dismiss as one for summary judgment.

Rahabi v. Morrison · filed 1981-07-06(c)

We have not searched the record and granted summary judgment to plaintiff because, contrary to the view of Special Term, it is our opinion that the parties should have been notified of the court’s intention to treat the motion as one for summary judgment (see CPLR 3211, subd [c]), and because the defendants may possibly be able to show either that they were justified in excluding plaintiff because of misuse of the easement (see 25 Am Jur 2d, Easements & Licenses, § 107) or his refusal upon demand to pay the percentage of real property taxes levied upon the servient estate as required in the instrument by which the easement was created.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment when no facts are disputed and the parties have fully addressed the legal question.

Board of Education v. City of New York Human Resources Administration · filed 1981-09-24(c)

There being no disputed factual issues and the parties having fully addressed the question of law, both orally and by submission of documentary evidence (cf. O’Hara v Del Bello, 47 NY2d 363), the court sua sponte will treat this motion to dismiss under CPLR 3211 (subd [a], par 7) as a motion for summary judgment (CPLR 3211, subd [c]).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment without further notice when the parties argue the merits as though seeking summary judgment.

Ass'n v. State of New York Department of Mental Hygiene · filed 1982-01-11(c)

Although the remaining branches of defendants’ motion to dismiss the complaint are brought pursuant to CPLR 3211 (subd [a], pars 5, 7) since issue has not been joined, the parties have undertaken to charter their course and, through counsel, have treated the motion as though it were one for summary judgment by arguing the merits of complaint allegations. Therefore, the motion is treated as one for summary judgment without the necessity of further notice pursuant to CPLR 3211 (subd [c]).

CPLR 3211(c) does not require notice before treating a dismissal motion as one for summary judgment when the parties have treated it that way and had an opportunity to submit evidence.

Guzzo v. Easterntech Electronics, Inc. · filed 1982-01-21(c)

Initially, we reject plaintiff’s claim that Special Term erred in granting summary judgment without giving the parties notice pursuant to CPLR 3211 (subd [c]). The motion seeking dismissal of the complaint was made after defendant had answered and plaintiff had replied to the answer. The motion papers did not specify whether the motion was pursuant to CPLR 3211 or 3212. The parties, however, treated the motion as one for summary judgment, submitting affidavits and documents in support of their respective positions. Accordingly, since the parties had the opportunity to make an appropriate record and submitted evidentiary proof on the issues, Special Term properly considered the motion as one for summary judgment (see Monteferrante v New York City Fire Dept., 63 AD2d 576, affd 47 NY2d 737).

A court may treat a CPLR 3211(a)(7) motion as one for summary judgment when both parties have treated it that way and agree that they have done so.

Von Seelen v. Nichols · filed 1982-01-25(a)(7)

Although appellant’s motion sought dismissal of the complaint pursuant to CPLR 3211 (subd [a], par 7), both parties to the appeal treated the motion as one for summary judgment and at argument of this appeal agreed that they had done so. Under such circumstances, we will deal with the motion as one seeking summary judgment.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment only after giving the parties adequate notice.

Silsdorf v. Levine · filed 1982-03-16(c)

The Civil Practice Law and Rules gives greater depth to a motion to dismiss than did the. Civil Practice Act by according the court the power to treat such a motion as a motion for summary judgment (CPLR 3211, subd [c]). However, the right to do so is limited by the condition that before so doing the court must give adequate notice to the parties.

When a motion to dismiss is treated as a motion for summary judgment, the party must have notice and an opportunity to show that triable issues of fact exist.

Puro v. Purofied Down Products Corp. · filed 1982-03-25(e)

We cannot, however, affirm the grant of a permanent injunction. Defendant was never advised that the issues were being summarily decided nor was he afforded the opportunity to demonstrate the existence of triable issues of fact. (See CPLR 3211, subd [e].) Hence, we are modifying the order to reflect the grant of a preliminary injunction only.

CPLR 3211(c) permits a motion to dismiss for failure to state a cause of action to be treated as one for summary judgment when both parties submit evidence and argue the merits.

Museum v. American Ass'n of Museums · filed 1982-03-25(c)

Thus, the motion to dismiss for failure to state a cause of action will be treated as one for summary judgment.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment after notifying the parties and inviting additional evidence.

Passonno v. Passonno · filed 1982-05-13(c)

The election to treat the motion as one for summary judgment was properly made in accordance with CPLR 3211 (subd [c]).

Section 3211(c) requires adequate notice before a motion to dismiss made after an answer is treated as a motion for summary judgment.

Rich v. Lefkovits · filed 1982-06-10(c)

It was, however, error to consider the motion, made under CPLR 3211 long after joinder of issue, without giving “adequate notice to the parties” as required by subdivision (c) of that section, that the motion would be treated as one for summary judgment.

CPLR 3211(c) leaves the court discretion to decline a request to treat a motion to dismiss as a summary judgment motion.

State v. Glen & Mohawk Milk Ass'n · filed 1982-06-10(c)

Two defendants, Oneida-Madison Milk Producers Co-operative Association, Inc., and Queensboro Farm Products, Inc., have requested their dismissal motions be treated as summary judgment motions pursuant to CPLR 3211 (subd [c]), but the court in its discretion declines to do so.

Section 3211(c) requires the court to inform the parties before treating a motion to dismiss as one for summary judgment.

Gifts of the Orient, Inc. v. Linden Country Club · filed 1982-07-01(c)

If Special Term was of the opinion that this issue and others could be decided, summarily, at that juncture, then the court was obligated to so inform the parties. Having failed to do so, the court could not treat this as a motion for summary judgment, which it did.

A CPLR 3211(a)(5) or (a)(7) motion cannot be converted to summary judgment by considering an affidavit without giving the opposing party an opportunity to reply.

Metropolitan Transportation Authority v. Regency-Lexington Partners · filed 1982-08-05(a)(5), (a)(7)

In dismissing the first cause of action, Special Term relied on an affidavit of counsel for the defendants-respondents to bring before the court two significant letters with respect to the question of the Statute of Frauds. No opportunity was given to counsel for plaintiffs-appellants to reply. The effect of this was impermissibly to convert a motion under CPLR 3211 (subd [a], pars 5, 7) into a motion for summary judgment under CPLR 3212.

CPLR 3211(c) allows a court to give notice that it will treat a motion to dismiss as a motion for summary judgment and give the parties time to submit additional evidence.

Kelly v. Chester Fire District · filed 1982-08-24(c)

This court, by interim order, dated May 27,1982, and pursuant to CPLR 3211 (subd [c]) gave notice that such cross motion will be treated as a motion for summary judgment. The parties were granted 20 days to submit whatever additional evidence they deemed advisable.

CPLR 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment after notifying the parties.

129 East 56 Street Corp. v. Harrison · filed 1982-09-03(c)

The court elected to treat the motion as a motion for summary judgment and so notified the parties in compliance with CPLR 3211 (subd [c]).

Section 3211(c) does not require notice before converting a dismissal motion to summary judgment when the only question to be decided is one of law.

Ambassador Insurance v. Shopwell, Inc. · filed 1982-09-28(c)

Plaintiff contends that before the court can convert a CPLR 3211 (subd [a], par 7) motion into one for summary judgment it must give notice as provided for in CPLR 3211 (subd [c]). It cites Rovello v Orofino Realty Co. (40 NY2d 633) for that contention. While this is true as a general statement it is not applicable in a case where the only question to be determined is one of law.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the available evidence has been submitted and no need for further discovery is shown.

Karfunkel v. USLIFE Corp. · filed 1982-09-30(c)

The motion by defendants to treat their motions as one for summary judgment, with respect to the cause of action in the Karfunkel complaint, and as to the first cause of action in the Brenner complaint, is granted. Plaintiffs have collected such evidence as is available to them; essentially all that remains is an interpretation of the facts shown by the affidavits and documents. Although plaintiffs seek further discovery, and request a stay of the determination of the pending motions, there is no showing that there are any other documents or facts which have not been presented on.these motions.