N.Y. C.P.L.R. § 3211

Section 3211(c) permits either party to submit summary judgment evidence on a motion to dismiss and leaves conversion to summary judgment to the court’s discretion.

Rosner v. Paley · filed 1982-10-17(c)

First, with respect to the procedural standpoint of the motion, the court need not (and does not) consider this motion to dismiss as a motion for summary judgment; this is permissive but not mandatory. (CPLR 3211.) Further, the language of CPLR 3211 (subd [c]) states that on a motion under 3211 (subd [a]) either party may submit evidence that would properly be considered on a motion for summary judgment.

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

Ford v. Levinson · filed 1982-10-19(c)

The court converted the motion to dismiss into one for ...summary judgment, without, however, giving the required notice to the parties (CPLR 3211, subd [c]), and then denied the motion, concluding that factual issues were presented that precluded summary judgment.

On a CPLR 3211 motion, a factual defense concerning responsibility for a defective condition is in the nature of a request for summary judgment and requires sufficient affidavit support.

Shartrand v. Town of Glenville · filed 1983-01-29

Finally, the branch of the motion alleging that the defendant does not have jurisdiction over the alleged defective culverts or did not create the claimed defective conditions is in the nature of a request for summary judgment and it is not sufficiently supported by affidavits for the court to consider. The affidavit of the “Town Engineer” submitted by the defendant does not show any foundation for his allegations as to the town’s responsibility or lack thereof for the alleged defective conditions.

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

I.J.E. Construction Corp. v. Dollar Federal Savings & Loan Ass'n · filed 1983-02-17(c)

Although CPLR 3211 (subd [c]) expressly permits the court to treat a motion to dismiss as one for summary judgment, the statute requires “adequate notice to the parties”, which was concededly never given here (see Rovello v Orofino Realty Co., 40 NY2d 633).

Section 3211(c) permits summary judgment before issue is joined when a motion to dismiss is before the court.

Hirschel v. City of New York · filed 1983-03-02(c)

The motion to dismiss the complaint is denied and although issue has not been joined as to certain of the defendants, plaintiffs’ motion for summary judgment is granted pursuant to CPLR 3211 (subd [c]).

Under CPLR 3211(c), a complaint that may state a cause of action on its face survives a motion to dismiss when the motion is not treated as one for summary judgment.

De Toma v. William Penn Life Insurance · filed 1983-03-29(c)

On its face, the complaint may state a cause of action; and this is not a motion for summary judgment.

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

Spano v. Inc. Village of Freeport · filed 1983-04-18(c)

CPLR 3211 (subd [c]) permits the court to treat a motion pursuant to CPLR 3211 (subd [al) as one for summary judgment but only “after adequate notice to the parties”. Although there is some reference to summary judgment in the papers of both sides, the record herein does not disclose such notice as would be necessary to formally treat the motion as one for summary judgment.

Section 3211 addresses dismissal based on the face of the pleading; a motion for summary judgment should not be treated as a Section 3211 motion.

Hartford Accident & Indemnity Co. v. Michigan Mutual Insurance · filed 1983-05-03

We also disagree with Special Term’s treatment of the cross motion by Michigan Mutual for summary judgment (CPLR 3212) as one to dismiss, addressed to the face of the pleading (CPLR 3211).

Section 3211(c) requires adequate notice to the opposing party before a court grants a request for partial summary judgment made in response to a motion to dismiss.

People v. New York City Transit Authority · filed 1983-07-12(c)

It would, therefore, have been improper to grant the People’s cross motion without “adequate notice” to the TA that the court intended to entertain the partial summary judgment application (CPLR 3211, subd [c]; Rovello v Orofino Realty Co., 40 NY2d 633; cf. Wein v City of New York, 36 NY2d 610, 620-631).

Section 3211(c) permits a court to treat a motion to dismiss as a summary judgment motion based on the papers submitted.

Missan v. Schoenfeld · filed 1983-07-28(c)

On the basis of all papers before the court, it was appropriate for the court to proceed as upon a motion for summary judgment.

Section 3211(c) does not authorize summary judgment when neither party has made a CPLR 3211 motion.

Ressis v. Mactye · filed 1983-12-01(c)

Further, since neither party herein made a CPLR 3211 motion, Special Term also lacked authority to grant summary judgment pursuant to CPLR 3211 (subd [c]).

Under CPLR 3211(c), failure to give notice before converting a motion to dismiss to summary judgment is not reversible error when the parties argued the legal issue and identified no material factual issue.

Baum v. Town Board · filed 1983-12-29(c)

The failure of Special Term to serve notice to the parties before converting the motion to dismiss into one for summary judgment (CPLR 3211, subd [c]) does not constitute reversible error since “the determination on the merits involved only a question of law which was argued by the parties on the motion and respondents have at no time identified or demonstrated the existence of any material factual issues” 0O’Hara v Del Bello, 47 NY2d 363, 366, modfg 62 AD2d 1034).

Section 3211(c) permits a court, after giving notice, to convert a motion to dismiss into a motion for summary judgment.

Miroff v. State Farm Fire & Casualty Co. · filed 1984-01-26(c)

On October 26, 1983, this court gave due notice that the defendants’ prior motions for a dismissal of the complaint would be converted to a motion 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.

129 East 56th Street Corp. v. Harrison · filed 1984-02-07(c)

Order entered April 29, 1983 reversed, with $10 costs, renewal granted, and on renewal tenant’s motion to dismiss the petition treated as a motion for summary judgment pursuant to CPLR 3211 (subd [c]) is denied and petitioner is granted summary judgment on the petition.

When a dismissal motion is not treated as one for summary judgment under CPLR 3211(c), the court may deny it if the complaint presents justiciable issues on its face.

Cole v. Wertheimer · filed 1984-02-23(c)

While we affirm the determinations of Special Term in this legal malpractice action, we do so simply because the complaint, on its face presents justiciable issues (see ...); and Special Term did not elect to treat the ...motion as one for summary judgment by invoking the procedure outlined in CPLR 3211 (subd [c]).

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

Camarda v. Vanderbilt · filed 1984-04-02(c)

Special Term erred in converting the cross motions to dismiss into ones for summary judgment without first giving notice to the parties of its intention to do so (CPLR 3211, subd [c]; Rovello v Orofino Realty Co., 40 NY2d 633).

CPLR 3211(c) permits a motion to dismiss to be treated as a summary judgment motion when the parties submit and rely on evidence and the court considers it.

Filippo v. White · filed 1984-05-07(c)

However, it is clear that the parties, by supplying and relying on evidentiary material, and Special Term, by considering this material in its decision, treated the motion as one for summary judgment (see CPLR 3211, subd [c]; cf. Guggenheimer v Ginzburg, 43 NY2d 268).

A motion under CPLR 3211(a)(7) to dismiss for failure to state a cause of action is deemed a summary judgment motion after issue has been joined.

Jacobs v. Marine Midland Bank, N. A. · filed 1984-05-07(a)(7)

In an action for damages based on defendant’s alleged violation of the Truth in Lending Act (US Code, tit 15, § 1601 etseq.), defendant moves to dismiss the complaint as failing to state a cause of action (CPLR 3211, subd [a], par 7). Since issue has been joined, the motion is deemed one for summary judgment.

A court must notify the parties before treating a CPLR 3211(a)(8) motion to dismiss as a motion for summary judgment.

Best v. City of New York · filed 1984-05-21(a)(8)

Additionally, Special Term improperly treated Keller’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 8) as one for summary judgment without giving notice to the parties of its intention to do so (see Rich v Lefkovits, 56 NY2d 276; Boswell v Jiminy Peak, 94 AD2d 782).

A pre-answer motion to dismiss under CPLR 3211 should not be treated as a summary judgment motion before issue is joined.

Paul Kirtack & Sons, Inc. v. Neustadt · filed 1984-07-05

We note that, inasmuch as issue had not yet been joined, it was not appropriate to consider defendant’s motion to be one for summary judgment.

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

Bland v. Two Trees Management Co. · filed 1984-07-09(c)

Accordingly, defendants’ motion is granted to the extent that it is treated as one for summary judgment pursuant to CPLR 3211 (subd [c]) as requested, the demand for punitive damages is stricken from the complaint, the individual defendants and Two Trees Management Co. are granted summary judgment dismissing the first, second and third causes of action as against them; and it is otherwise denied.

Under CPLR 3211(c), the court may treat a summary judgment cross motion made before issue is joined as converted when the opposing party does not argue that it is premature.

Davis Wallbridge, Inc. v. Aetna Casualty & Surety Co. · filed 1984-07-13(c)

Neither at Special Term nor in this court has defendant argued that plaintiff’s cross motion is premature because issue has not been joined, and we treat the motion as one converted under CPLR 3211 (subd [c]).

A court may treat a motion to dismiss as a motion for summary judgment when the movant requests dismissal with prejudice and submits evidentiary material.

Curry v. Nocket · filed 1984-08-20(c)

However, by (1) specifically requesting that the complaint be dismissed “with prejudice” and (2) submitting “evidentiary material” in support of their cross motion, it is clear that defendants desired their cross motion to be treated as one for summary judgment, and Special Term did not err in so treating it (Kocsor v Eastland, 44 AD2d 869; De Filippo v White, 101 AD2d 801; CPLR 3211, subd [c]).

A CPLR 3211 motion may be treated as a motion for summary judgment when the parties have had sufficient notice.

Margulis v. Teichman · filed 1984-09-12(c)

While the original motion was brought under CPLR 3211, it was regarded by the Nassau County Supreme Court as one for summary judgment and will be so treated here, the parties having had sufficient notice of such intention.

Section 3211(c) requires notice before a motion to dismiss is treated as a motion for summary judgment, unless the papers show that omitting notice caused no prejudice.

Nassau Boces Central Council of Teachers v. Board of Cooperative Educational Services · filed 1984-09-20(c)

Thus, notice that a motion to dismiss under CPLR 3211 will be treated as a motion for summary judgment is required prior to dismissal on the merits unless it is clear from the papers that no prejudice has resulted from omission of notice (Rich v Lefkovits, 56 NY2d 276, 283).

Section 3211(c) does not support partial summary judgment when the record is premature, factual issues remain, and the applicants provide no affidavits supporting affirmative relief.

Klostermann v. Cuomo · filed 1984-10-02(c)

Plaintiffs’ request under CPLR 3211 (subd [c]) for partial summary judgment that plaintiffs must be “ensured a suitable residence” under the provisions of the Mental Hygiene Law is denied on the ground that such disposition would be entirely premature on the present record, and this claim presents issues of fact with respect to each plaintiff. It need only be pointed out that the individual plaintiffs have submitted no affidavits of their own in support of such drastic relief; the fact that the truth of their allegations must be assumed in connection with defendants’ motion to dismiss the complaint does not apply to plaintiffs’ counteraffirmative judgment in their favor.

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

Handy v. Westbury Teachers Ass'n · filed 1984-10-15(c)

Special Term erred in treating defendants’ motions to dismiss plaintiffs’ complaint as motions for summary judgment without affording notice to the parties of its intention to do so as required by CPLR 3211 (subd [c]).

A court may treat a summary judgment motion as a CPLR 3211 motion to dismiss when the question is whether the complaint states a cause of action as a matter of law.

Fusco v. General Motors Corp. · filed 1984-12-13

Although the procedural vehicle by which this matter is before the court is a motion for summary judgment pursuant to CPLR 3212, the question presented is not whether issues of fact exist for trial, but rather whether as a matter of law the complaint states a cause of action. The court will therefore treat it as a motion to dismiss pursuant to CPLR 3211.

Under CPLR 3211(c), a motion that expressly requests summary judgment gives the opposing party notice of possible conversion.

Pollnow v. Poughkeepsie Newspapers, Inc. · filed 1985-02-04(c)

The newspaper’s notice of motion explicitly requested, and thus put plaintiffs on notice, that it was seeking summary judgment.

When a motion to dismiss under CPLR 3211(a)(7) is not converted to summary judgment under subsection (c), denial of the motion does not foreclose a later summary judgment motion.

Italiano v. Town & Village of Harrison · filed 1985-04-08(c)

Although defendant proffered evidence that the resolution was passed for the latter purpose, Special Term did not convert the branch of defendant’s cross motion which was to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7) into one for summary judgment (CPLR 3211 [c]). Consequently, we note that our affirmance of Special Term’s order, insofar as appealed from, does not foreclose defendant from bringing a motion for summary judgment.

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

Shayne v. Julien · filed 1985-04-15(c)

It is clear that it was within Special Term’s discretion whether or not to treat the instant motion to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7) as one for summary judgment. We find no abuse by Special Term in the manner in which it exercised that discretion in the case at bar.

CPLR 3211(c) does not require additional notice before a court treats a cross motion as one for summary judgment when the notice of cross motion clearly seeks summary judgment and the opposing party submits answering affidavits.

Ross v. Keon · filed 1985-04-22(c)

No procedural error occurred in treating the aforenoted branch of plaintiffs’ cross motion as one for summary judgment. Plaintiffs’ notice of cross motion clearly indicated that they were seeking summary judgment pursuant to CPLR 3211 (c) and defendants submitted answering affidavits. In such circumstances, Special Term was not required to notify defendants before ruling on the cross motion (see, O’Hara v Del Bello, 47 NY2d 363, 367-368; Pollnow v Poughkeepsie Newspapers, 107 AD2d 10, 16, n 4; Goldstein v County of Monroe, 77 AD2d 232, 234; Monteferrante v New York City Fire Dept., 63 AD2d 576, affd 47 NY2d 737 on mem at App Div).

When a court decides a motion on pleading sufficiency without converting it to summary judgment under CPLR 3211(c), it reviews the complaint’s allegations and uses accompanying affidavits only to remedy pleading defects.

Barrows v. Rozansky · filed 1985-05-23(c)

Since it is clear that Special Term chose to dismiss the complaint on legal insufficiency and not summary judgment grounds pursuant to CPLR 3211 (c), 3212, we can confine ourselves to the allegations of the complaint itself and revert to accompanying affidavits for the limited purpose of remedying any defects in the complaint.

On a motion to dismiss for failure to state a cause of action, affidavits cannot be used to test the pleading’s evidentiary support unless the court converts the motion to one for summary judgment.

Hornstein v. Wolf · filed 1985-06-24(a)(7)

Initially, we note that unless a motion to dismiss for failure to state a cause of action is converted by the court to a motion for summary judgment, affidavits received on the motion are not to be examined for the purpose of determining whether there is evidentiary support for the pleading (see, Guggenheimer v Ginzburg, 43 NY2d 268, 272; Rovello v Orofino Realty Co., supra, at p 635).

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

Firestone v. Saxton Products, Inc. · filed 1985-09-03(c)

Since the motion was made after service of the answer, it should have been made under CPLR 3212, and the Surrogate should have given notice to the parties pursuant to CPLR 3211 (c) that the motion would be treated as one for summary judgment (Rich v Lefkovits, 56 NY2d 276; Boswell v Jiminy Peak, 94 AD2d 782).

When both parties treat a motion to dismiss as one for summary judgment, they have notice that the court may treat it that way.

Bank v. Ulster Heights Properties, Inc. · filed 1985-10-21(c)

Based upon the record, it is evident that defendant’s cross motion was not solely addressed to the pleadings, and that both parties in their submissions treated the cross motion as one for summary judgment.

When a motion to dismiss has not been treated as a summary judgment motion, the court asks whether any provable cause of action can be gleaned from the complaint.

Caramante v. Barton · filed 1985-10-24(c)

Initially, we note that while defendants repeatedly refer in their brief to Special Term’s denial of their request for "summary judgment”, the record fails to indicate that the court treated the instant motion as a motion for summary judgment (see, CPLR 3211 [c]). Thus, our inquiry is whether any provable cause of action may be gleaned from the complaint (see, Ecker v Wright, 69 AD2d 1012).

Section 3211(c) permits a court to grant summary judgment on a preanswer motion to dismiss without notice when the parties argued the legal question, no material factual issue was identified, and the movant shows no prejudice from the lack of notice.

Mathys v. Town of East Hampton · filed 1985-11-04(c)

Special Term properly granted summary judgment to plaintiffs on defendants’ motion to dismiss the complaint, without the notice prescribed by CPLR 3211 (c). Here, as in O’Hara v Del Bello (47 NY2d 363), the motion to dismiss was made prior to service of an answer, the determination on the merits involved only a question of law which was argued by the parties on the motion and defendants had at no time identified or demonstrated the existence of any material factual issues. Furthermore, the defendants have made no showing as to how they were prejudiced by their failure to receive notice under CPLR 3211 (c).

Under CPLR 3211(c), sufficient indications that a dismissal motion will be treated as one for partial summary judgment can provide adequate notice, but the resulting judgment must stay within the identified issue.

Showcase Homes, Ltd. v. Kontogiannis · filed 1985-11-12(c)

There were, however, sufficient indicia that the motion would be treated as one for partial judgment on the issue of the defendant’s personal liability, and defendant may not now complain that it did not have notice of the court’s intention (see, Goldstein v County of Monroe, 77 AD2d 232, 234; see also, Shapiro v Prudential Ins. Co., 81 AD2d 661, 662). Such treatment should, however, have been restricted to the question of the individual defendant’s personal liability.

Section 3211(c) permits a court to consider summary judgment on a motion to dismiss when the parties have adequate notice and submit sufficient papers.

Starburst Realty Corp. v. City of New York · filed 1985-12-18(c)

However, defendants’ motion papers request summary judgment in the alternative. All parties were thus provided adequate notice that the court might consider summary judgment and papers sufficient for such treatment were submitted.

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

Manhattan Life Insurance v. Fernandez · filed 1986-01-09(c)

Clearly, the court in these procedural circumstances had the option to treat the motion as one for summary judgment, but only after adequate notice had first been given to the parties as required by CPLR 3211 (c).

Section 3211(c) permits a court to treat a dismissal motion as one for summary judgment when the notice seeks summary judgment and both parties have addressed the legal issues.

Chen v. Roosevelt & Main Street Realty Corp. · filed 1986-03-10(c)

In an action to recover the balance remaining unpaid on two cashier’s checks, defendants move pursuant to CPLR 3211 (a) (7) and 3211 (c) to dismiss the complaint for failure to state a cause of action and for summary judgment. Since the notice of motion informed plaintiffs of movants’ intention to seek summary judgment and the legal issues raised have been addressed by both parties, the court will treat the motion as one for summary judgment.

Section 3211(c) does not require separate notice from the court before treating a dismissal motion as one for summary judgment when the opposing party's request gives the movant an opportunity to submit proof.

Reed v. Shoratlantic Development Co. · filed 1986-06-16(c)

The appellants chose to decline the opportunity to adduce their proof, and to instead request notification by the court as to its decision on the plaintiffs request. However, CPLR 3211 (c) does not require notification by the court under these circumstances.

Section 3211(c) permits a court to treat a preanswer motion to dismiss as a motion for summary judgment, but the applicability of that procedure was not before the appellate court when the movant had not requested it.

Delta Electric, Inc. v. Ingram & Greene, Inc. · filed 1986-09-22(c)

While CPLR 3211 (c) permits a court to treat a preanswer motion to dismiss, pursuant to CPLR 3211 (a), as a motion for summary judgment, the appellant did not request Special Term to so treat that branch of its motion to dismiss as one for summary judgment. Accordingly, the issue of the applicability of CPLR 3211 (c) is not properly before this court for its consideration (cf. Mastronardi v Mitchell, 109 AD2d 825, 828).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment after issue has been joined.

Anselmo v. Copertino · filed 1987-01-29(c)

However, in view of the fact that issue has already been joined, defendants’ motion is more properly a motion for summary judgment dismissing the complaint and the court, in its discretion, will treat it as such (CPLR 3211 [c]).

Section 3211(c) does not allow a request for summary judgment to be considered on appeal when the dismissal motion did not seek that relief and the opposing party had no opportunity to submit evidence.

Advance Food Service Equipment, Inc. v. County of Nassau · filed 1987-03-16(c)

Finally, the defendant’s contention on this appeal that summary judgment should have been granted is not properly before this court as its motion did not seek such relief and the plaintiff was not given an opportunity to present evidence in opposition to such relief (see, CPLR 3211 [c]; see, Rich v Lefkovits, 56 NY2d 276).

Section 3211(c) generally requires the court to give notice before treating a prejoinder motion to dismiss as a motion for summary judgment; the notice should identify the issues the court considers dispositive.

Four Seasons Hotels Ltd. v. Vinnik · filed 1987-04-28(c)

Special Term erred not because summary judgment is unavailable to a pleader prior to joinder of issue, but because summary judgment is unavailable to either side prior to joinder of issue absent CPLR 3211 (c) notice. Such notice must come directly from the court and should fairly advise as to the issues it deems dispositive of the action.

Section 3211(c) requires the court to notify the parties and give them an opportunity to address summary judgment before treating a motion to dismiss as a summary judgment motion.

Cowles v. Brownell · filed 1987-05-07(c)

Not having announced that the motion was being considered as one for summary judgment (CPLR 3211 [c]), it appears that the court erred. The validity of the release was contested. Therefore, we remit to Supreme Court for consideration of the motion as one for summary judgment, thereby providing the parties an opportunity to address the motion in that manner, including a demand for an evidentiary hearing.

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

Schoelier v. Pulitzer · filed 1987-05-22(c)

Even if there had been one, the court failed to give plaintiff "adequate notice” of its intention to treat the motion as one for summary judgment (CPLR 3211 [c]; Guggenheimer v Ginzburg, 43 NY2d 268, 272; Rovello v Orofino Realty Co., 40 NY2d 633, 636).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment without giving conversion notice when the parties themselves submit arguments on the merits and treat it as a summary judgment motion.

Mihlovan v. Grozavu · filed 1987-06-08(c)

Although the trial court here, in treating the defendants’ motion to dismiss as a motion for summary judgment, did not give the parties the notice prescribed by CPLR 3211 (c), it nonetheless acted properly as the parties themselves submitted arguments on the merits and thus treated the motion 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 giving them an opportunity to submit additional papers.

Dunckley v. State · filed 1987-08-21(c)

Upon the defendants’ motion to dismiss pursuant to CPLR 3211 (a) (2) and (7) and Court of Claims Act § 10 (3), wé notified the parties of our intention to treat the motion as one for summary judgment and offered the parties an opportunity to submit additional papers.

A motion to dismiss for failure to state a cause of action made after joinder of issue may be treated as a motion for summary judgment.

Martell v. St. Charles Hospital · filed 1987-10-19(a)(7)

Initially it is observed that the motion by the defendant, Lea Tala, and the cross motion by the defendant, Jerome Weinraub, to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), made after joinder of issue, shall be deemed a motion and cross motion for summary judgment.

A CPLR 3211 motion may be treated as one for summary judgment only when the parties receive notice and the resulting order reflects summary judgment consideration.

Block v. Cohen · filed 1987-10-29(c)

For a CPLR 3211 motion to be treated as one for summary judgment, there must be notice to the parties and the order emanating from the motion should reflect that the matter was given summary judgment consideration (CPLR 3211 [c]; ...). That did not occur here.

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

Tellier-Wolfe v. Viacom Broadcasting, Inc. · filed 1987-11-10(c)

While CPLR 3211 (c) permits the court to treat a motion to dismiss as one for summary judgment, it may only do so by first giving adequate notice to the parties.

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

Fleur v. Croy · filed 1987-11-13(c)

At the request of respondents, the court notified all counsel that it would treat the motion as one for summary judgment (CPLR 3211 [c]); both parties declined to submit additional affidavits.

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

Ippolito v. Ono-Lennon · filed 1988-02-03(c)

Although defendant seeks to convert this motion to one for summary judgment, pursuant to CPLR 3211 (c), the rule, at least in this Department, is that notice of an intention to treat the motion as such must come directly from the court (see, Four Seasons Hotels v Vinnik, 127 AD2d 310 [1st Dept 1987]); no such notice was given by the court. Therefore, the motion will not be treated as one for summary judgment.

Section 3211(c) gives a court discretion to treat a motion to dismiss as one for summary judgment; the court may decline to do so when conversion would impose an unnecessary hardship.

Davis v. Davis · filed 1988-03-01(c)

Assuming, arguendo, that the court did find that CPLR 3211 (c) applied, the treating of the motion as one for summary judgment is purely discretionary. This court refuses to exercise such discretion, for the defendant is obviously difficult to serve due to his constant travels. It would thus impose an unnecessary hardship upon the plaintiff.

A CPLR 3211 dismissal motion remains a pleading motion when the parties receive no notice that it will be treated as a motion for summary judgment.

Town of Penfield v. Baker Commodities, Inc. · filed 1988-03-04(c)

Plaintiff expressly limited its responding papers to that motion (cf., Goldstein v County of Monroe, 77 AD2d 232) and the parties were not given notice that the motion would be treated as one for summary judgment (see, CPLR 3211 [c]). Thus, Special Term’s order properly recites that the motion was made under CPLR 3211.

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

Pearsal Properties Corp. v. Arzina Realty Corp. · filed 1988-04-18(c)

We also find that the Supreme Court improvidently exercised its discretion in converting the defendants’ preanswer motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) into a motion for summary judgment without first notifying the parties of its intent to do so (see, CPLR 3211 [c]).

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

Ring v. Rodriguez · filed 1988-09-30(c)

Since the public employee/public officer determination will be dispositive of the proceeding, the court, in compliance with CPLR 3211 (c), notified the parties that it intended to treat the dismissal motion as a motion for summary judgment and invited the parties to submit any additional evidence they deemed appropriate. No additional evidence was submitted and the court will now consider the merits of the proceeding.

CPLR 3211(c) requires notice fairly advising the parties of the dispositive issues before a court treats a motion to dismiss as one for summary judgment.

Quasha v. American Natural Beverages Corp. · filed 1988-10-20(c)

We have held in Four Seasons Hotels v Vinnik (127 AD2d 310, 320 [1st Dept 1987]) that before a court can apply summary judgment treatment to a Complaint, pursuant to CPLR 3211 (c), it must give notice, and “Such notice * * * should fairly advise [the parties] as to the issues it deems dispositive of the action”. Since examination of the record before us does not indicate that the IAS court gave the required notice, we therefore find that it abused its discretion in dismissing the fifth, sixth, and seventh causes of action of the amended complaint.

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

Mihlovan v. Grozavu · filed 1988-11-17(c)

Thus, the Appellate Division could not properly convert defendants’ motion into a motion for summary judgment absent "adequate notice to the parties” (CPLR 3211 [c]) which, in this case, should have been expressly given by the court.

Section 3211(c) requires an opportunity to submit evidence before a motion to dismiss is treated as one for summary judgment.

Walter v. Saxe · filed 1988-12-23(c)

It was further error to treat respondents’ motion to dismiss the petition as one for summary judgment because the parties were not given the opportunity to "submit any evidence that could properly be considered on a motion for summary judgment” (CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 NY2d 100, 103) and because the motion to dismiss was supported only by the affirmation of an attorney who lacked personal knowledge of the facts (Harlem Sav. Bank v Independent Leasing Corp., 114 AD2d 314).

Section 3211(c) requires no additional notice when the motions expressly seek summary judgment and the opposing party’s papers show awareness of the relief sought.

Bauch v. Verrilli · filed 1989-01-05(c)

Plaintiffs’ first contention on appeal is that defendants’ motions were essentially motions to dismiss pursuant to CPLR 3211 (a) (7), and that Supreme Court erred in failing to give them notice, pursuant to CPLR 3211 (c), that it intended to treat the motions as seeking partial summary judgment. We disagree. Each defendant’s notice of motion specifically requested partial summary judgment pursuant to CPLR 3212. Moreover, plaintiffs’ responding papers demonstrate that they were fully aware of the nature of the relief sought by defendants. Therefore, in our view, no additional notice by the court was necessary.

Section 3211(c) requires proper notice before a motion to dismiss is treated as one for summary judgment; without conversion, the court takes the petition’s allegations as true and ignores opposing affidavits.

FYM Clinical Laboratory, Inc. v. Perales · filed 1989-02-16(c)

We note that Supreme Court did not treat the motion as one for summary judgment upon proper notice to the parties (see, CPLR 3211 [c]; Matter of Board of Educ. v State Educ. Dept., 116 AD2d 939, 941). Thus, Supreme Court, in ruling on the motion to dismiss on objection in point of law, should have considered only the petition, taking the allegations therein as true and ignoring opposing affidavits, and our review is limited accordingly (supra, at 940-941).

Section 3211(c) does not require notice of conversion to summary judgment when the complaint is dismissed under Section 3211 without conversion.

Baecher v. Ross · filed 1989-03-13(c)

Contrary to the plaintiff’s contention, the court did not improperly convert the defendants’ motion to dismiss pursuant to CPLR 3211 to a motion for summary judgment without giving notice to the parties (see, CPLR 3211 [c]).

A court may treat a CPLR 3211 motion to dismiss as one for summary judgment without prior notice when both parties’ submissions show they understood that summary judgment was sought.

Play Knits, Inc. v. Samuel Blue, Inc. · filed 1989-04-04

It is significant, however, that defendant, while denominating the notice of motion as one pursuant to CPLR 3211, submitted, by its president, an "Affidavit In Support of Motion For Summary Judgment” and plaintiff opposed by its president’s "Affidavit in Opposition to Motion For Summary Judgment”. Both parties, therefore, understood the relief sought was for summary judgment and the court correctly treated it as such.

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

Coffey v. United States Gypsum Co. · filed 1989-04-14(c)

Memorandum: Special Term properly treated defendants’ motion to dismiss (CPLR 3211 [a] [7]) as one for summary judgment after giving "adequate notice to the parties” (CPLR 3211 [c]).

Section 3211(c) requires notice before a court treats a motion to dismiss as one for summary judgment to resolve factual questions of intent.

Raglan Realty Corp. v. Tudor Hotel Corp. · filed 1989-04-25(c)

Where, as here, questions of intent arise which must be resolved by considering the relationship of the parties, the nature of the transaction involved and the surrounding circumstances, such factual issues should not be determined on a motion to dismiss a pleading absent notice to the parties, pursuant to CPLR 3211 (c), that the motion is being treated as one for summary judgment (see generally, Four Seasons Hotels v Vinnik, 127 AD2d 310).

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

Barclay Arms, Inc. v. Barclay Arms Associates · filed 1989-05-11(c)

Although Supreme Court’s purported conversion of defendants’ CPLR 3211 motion was not done in accordance with the notice requirement of CPLR 3211 (c) or this court’s recent holding in Mihlovan v Grozavu (72 NY2d 506), the Appellate Division properly determined that plaintiff’s complaint failed as a matter of law to state a cause of action for unilateral mistake and fraud.

Section 3211(c) does not require notice before a dismissal motion is treated as one for summary judgment when the parties deliberately chart a summary judgment course.

Kodack v. Pratt · filed 1989-06-12(c)

Here, the papers submitted in support of and in opposition to the motion indicate that the parties were "deliberately charting a summary judgment course” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320). Consequently, the Supreme Court was not required to notify the parties pursuant to CPLR 3211 (c) of its intent to treat the motion as a motion for summary judgment (cf., Mihlovan v Grozavu, supra).

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

Joseph Kell Enterprises, Inc. v. Allen · filed 1989-06-22(c)

Neither of the parties requested that defendants’ cross motion for dismissal be treated as one for summary judgment pursuant to CPLR 3211 (c) and the court could not properly treat it as such, sua sponte, without giving "adequate notice” (CPLR 3211 [c]).

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

Robert M. Padden Construction, Inc. v. Reitkopf · filed 1989-08-16(c)

This court converted defendants’ motion to one for summary judgment pursuant to CPLR 3211 (c).

Section 3211(c) does not require notice before a dismissal motion is treated as one for summary judgment when the motion follows joinder of issue, relies on matters outside the pleading, and the opposing party expressly requests summary judgment.

Commack Roller Rink, Inc. v. Commack Arena Marketing, Inc. · filed 1989-10-02(c)

Under the circumstances, the Supreme Court was not obligated to give the parties the notice contemplated by CPLR 3211 (c).

CPLR 3211(c) does not permit summary judgment against defendants before issue is joined as to them.

Garden City Center Associates v. Board of Assessors · filed 1989-08-21(c)

We cannot grant the plaintiffs summary judgment on the issue of refund liability against the county defendants since there has not been joinder of issue with respect to those defendants (see, CPLR 3211 [c]; 3212 [a]; Milk v Gottschalk, 29 AD2d 698).

A court may reject a request to treat motions to dismiss under CPLR 3211(a)(5), (7), and (10) as motions for summary judgment.

Burcon Properties, Inc. v. Dalto · filed 1989-11-13

The contention of the defendants Dalto and Superior Steakhouse Systems of Garden City, Inc., that the court should have treated their cross motions to dismiss the complaint pursuant to CPLR 3211 (a) (5), (7) and (10) as motions for summary judgment and should have granted judgment in their favor is without merit.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment after notifying the parties and giving them an opportunity to submit additional proof.

Brennan v. Regan · filed 1989-11-13(c)

For this reason, pursuant to the authority of CPLR 3211 (c), the court elects to treat the CPLR 3211 motion of the defendants as a motion for summary judgment, and to that end has duly notified the parties of the court’s election to do so, with the opportunity to submit whatever additional proof they may have to buttress their positions.

CPLR 3211(c) requires notice before a court converts a motion to dismiss into one for summary judgment, but a later full and fair opportunity to argue summary judgment can cure the lack of notice.

Ahmad v. Ennab · filed 1990-02-26(c)

Without giving notice to the parties of its intention to do so, the court treated the cross motion to dismiss as one for summary judgment and granted judgment in favor of Budget Rent A Car. This was error (see, CPLR 3211 [c]). However, the plaintiffs thereafter moved for reargument, at which time they had a full and fair opportunity to argue the merits as to summary judgment. Upon granting reargument, the court adhered to its original determination in favor of defendant Budget Rent A Car. Under these circumstances, the error was cured and a reversal on procedural grounds is not required (see, O’Hara v Del Bello, 62 AD2d 1034, mod on other grounds 47 NY2d 363).

Section 3211 permits a court to convert a motion to dismiss into a summary judgment motion when no factual issues remain and the parties have sufficient notice and an opportunity to present evidence.

Watkins v. New York State Ethics Commission · filed 1990-03-21

... nevertheless, the court has the prerogative to convert the motion to dismiss under CPLR 3211 to a motion for summary judgment, and there being no issues of fact herein — only considerations of law — the court elects to treat the CPLR 3211 motion as a motion for summary judgment. Sufficient notice and the opportunity to present further evidence was given to all parties.

A court may not treat a motion to dismiss under CPLR 3211 (a) (7) as a motion for summary judgment without adequately notifying the parties.

Kelly Masonry Corp. v. Presbyterian Hospital · filed 1990-04-03(a)(7)

Where, as here, a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), a court may not treat the motion as one for summary judgment without providing adequate notice to the parties of its intention to do so.

CPLR 3211(c) permits a court to convert a motion to dismiss to one for summary judgment on its own when the case presents only legal issues that both sides fully argued.

Kaswan v. Aponte · filed 1990-04-10(c)

Procedurally, it was not improper for the court, on its own, in this declaratory judgment action, to convert respondent’s motion to dismiss to one for summary judgment, pursuant to CPLR 3211 (c), since the case presented no issues of fact but only issues of law in involving an issue of statutory construction, fully appreciated and argued by both sides.

A party who treated a motion to dismiss as one for summary judgment before the trial court cannot challenge its conversion on appeal for lack of notice.

Fantaco Enterprises, Inc. v. Iavarone · filed 1990-05-03(c)

Initially, plaintiff argues in its brief that Supreme Court should not have treated defendants’ motion as one for summary judgment because plaintiff had no notice that the court would do so (see, CPLR 3211 [c]). However, the record reveals that plaintiff’s counsel, in an opposing affidavit sworn to May 3, 1989, described and treated defendants’ motion as one for summary judgment. Thus, plaintiff cannot take a new and contradictory position on this appeal from that which it maintained before Supreme Court.

When a motion seeks alternative relief under CPLR 3211 and 3212, the court may grant the relief it deems appropriate.

Costa v. Finke · filed 1990-06-28

Defendant’s notice of motion and supporting affidavits clearly sought alternative relief under CPLR 3211 and 3212, hence, the court was free to grant the relief it deemed appropriate (see, Bauch v Verrilli, 146 AD2d 835, 836).

CPLR 3211(c) does not require separate notice before a dismissal motion is treated as one for summary judgment when the parties’ submissions clearly show they intended that treatment.

Hahn v. City of Rensselaer · filed 1990-10-18(c)

By their express language and proof submitted, both parties unambiguously indicated their intention that the motion be treated as one for summary judgment and plaintiff cannot now rightfully claim that it was prejudiced by Supreme Court’s election to do so.

Section 3211(e) requires notice before a motion mistakenly brought under section 3211 may receive summary judgment treatment, so the opposing party can respond.

DeSanctis v. Laudeman · filed 1991-01-24(e)

Whenever such a motion is erroneously labeled as one under CPLR 3211 rather than the proper CPLR 3212, it will invoke the notice requirement of CPLR 3211 (e) and summary judgment treatment cannot proceed until the plaintiff is notified to that effect so a fair opposition from that party can be presented (see, Rich v Lefkovits, 56 NY2d 276; Siegel, 1982 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:20 [1991 Supp Pamph], at 227).

A court may not convert a CPLR 3211(a)(7) motion to dismiss into a summary judgment motion without notice to the parties.

Acosta v. Vataj · filed 1991-02-21(a)(7)

It was error for IAS to convert defendants’ motion to dismiss the first cause of action for defamation (CPLR 3211 [a] [7]) into one for summary judgment under CPLR 3212 without any notice to the parties (Four Seasons Hotels v Vinnik, 127 AD2d 310).

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

Patten Corp. v. Ass'n of Property Owners of Sleepy Hollow Lake, Inc. · filed 1991-04-18(c)

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

A court may convert a CPLR 3211 motion to summary judgment without notice when there are no material factual issues and both sides have fully argued the legal issues.

19th Street Associates v. State · filed 1991-04-23

The IAS Court properly converted the motion to one for summary judgment without notice to the non-State defendants, because the action involves no issues of material fact, but only issues of law fully appreciated and argued by both sides, specifically the constitutionality of chapter 473 (see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

A CPLR 3211 motion may be treated as one for summary judgment when the parties deliberately chart a summary judgment course.

Mazurick v. Chalos · filed 1991-04-29(c)

Although "the unilateral actions of a party in seeking summary judgment on a CPLR 3211 (a) (7) motion cannot constitute 'adequate notice’ to the other party in compliance with the requirement of CPLR 3211 (c)” (Mihlovan v Grozavu, 72 NY2d 506, 508, n), we find that, based on the record before us, the parties were "deliberately charting a summary judgment course” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320; see also, Mihlovan v Grozavu, supra). Therefore, the defendant Michael Chalos’ motion pursuant to CPLR 3211 (a) (1) and (7) may properly be treated as one for summary judgment.

Section 3211(c) requires adequate notice to the parties before a court treats a motion to dismiss as one for summary judgment; a party’s request for summary judgment does not supply that notice.

John & Mary Markle Foundation v. Manufacturers Hanover Trust Co. · filed 1991-05-31(c)

While, CPLR 3211 (c), which was also relied upon by the plaintiff, provides that ... "[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”, the Supreme Court in this case did not give the parties adequate notice, and the fact that the plaintiff requested that relief is not a sufficient substitute for such notice (see, Mihlovan v Grozavu, 72 NY2d 506, 508, n).

Section 3211(c) does not require formal notice before a court treats a motion to dismiss as one for summary judgment when the parties deliberately charted a summary judgment course.

Newberg v. Village of Great Neck, Inc. · filed 1991-06-12(c)

The court notes that although no formal notice was afforded plaintiffs of the court’s intention to treat the instant application as a motion for summary judgment, pursuant to CPLR 3211 (c), such notice was not required herein. It is unequivocally clear from the papers submitted herein that plaintiffs "deliberately chart[ed] a summary judgment course”, and opposed the instant application as one wherein plaintiffs were obligated to "[lay] bare their proof’, rather than to address the legal sufficiency of the complaint.

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

Statom v. County of Dutchess · filed 1991-07-11(c)

Initially, we note that respondents’ preanswer motion sought dismissal of the petition pursuant to CPLR 3211 (a) (1) and (7) and it appears from the record that Supreme Court may have treated the motion as one for summary judgment pursuant to CPLR 3212. We conclude, however, that it was error to do so without converting the motion to dismiss to a motion for summary judgment with "adequate notice to the parties” (CPLR 3211 [c]; see, Mihlovan v Grozavu, 72 NY2d 506, 508).

CPLR 3211(c) requires appropriate notice before a court treats a motion to dismiss as one for summary judgment.

Six Nations Apartment Housing Fund Development Co. v. Six Nations Properties, Ltd. · filed 1991-07-12(c)

Supreme Court erred by resolving the issue of the reasonableness of plaintiff’s actions on defendant’s motion to dismiss the complaint without giving appropriate notice to the parties of its intention to treat the motion as one for summary judgment (CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506, 508).

CPLR 3211(c) does not permit a court to effectively grant summary judgment on a preliminary-injunction application when no proper motion for summary judgment is before it.

Scheller v. MacMarty, Inc. · filed 1991-11-25(c)

No proper motion for summary judgment was before the court. Therefore, it was improper for the court to effectively grant summary judgment in the defendant’s favor (see, Guggenheimer v Ginzburg, 43 NY2d 268; see also, Rovello v Orofino Realty Co., 40 NY2d 633; Mihlovan v Grozavu, 72 NY2d 506; CPLR 3211 [c]).

Under CPLR 3211(c), the court must give notice before converting a motion to dismiss into a motion for summary judgment.

Winner v. Cuomo · filed 1992-02-13(c)

In response, plaintiffs observed that defendant did not claim that any factual issues existed and, relying on CPLR 3211 (c), they asserted that the lack of an answer was not a procedural bar to granting summary judgment. Supreme Court, however, did not convert defendant’s motion to dismiss into a motion for summary judgment and it is the court, not plaintiffs, which must give such notice (Siegel, 1989 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:44 [1991 Supp Pamph], at 5-6).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the parties deliberately chart a summary judgment course.

Ting Kou Cheng v. Brewran Village Hudson Associates · filed 1992-02-18(c)

The arguments presented in their respective briefs indicate that the parties are "deliberately charting a summary judgment course” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

A motion may be treated as both a summary judgment motion and a CPLR 3211(a)(7) motion to dismiss when that treatment does not prejudice the plaintiff.

Levine v. American Federal Group, Ltd. · filed 1992-02-27(a)(7)

It is, therefore, proper, and not prejudicial to plaintiffs to treat the motion as a "hybrid” one for summary judgment and for dismissal pursuant to CPLR 3211 (a) (7) (see, Monteferrante v New York City Fire Dept., 63 AD2d 576, affd for reasons stated 47 NY2d 737).

Converting a § 3211 dismissal motion to summary judgment requires it to be unequivocally clear that the parties charted that course for the issues being decided.

Bello v. Cablevision System Corp. · filed 1992-07-13(c)

Although we believe that the parties charted a course for summary judgment on the issue of whether there exists a contractual relationship between them (see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 320), we cannot conclude on this record, as did the Supreme Court, that it is "unequivocally clear” that this was so with respect to the remainder of the case (Four Seasons Hotel v Vinnik, supra, at 320; Markle Found. v Manufacturers Hanover Trust Co., 173 AD2d 784; cf., Monteferrante v New York City Fire Dept., 63 AD2d 576, affd for reasons stated at App Div 47 NY2d 737).

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment after advising the parties and allowing additional submissions.

New York Coalition of Recycling Enterprises, Inc. v. City of New York · filed 1992-09-01(c)

...the court has, pursuant to CPLR 3211 (c) converted the motion to one for summary judgment and has so advised the parties, who were permitted to submit and did submit additional papers.

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

Agin v. Krest Associates · filed 1992-09-10(c)

Before treating defendants’ cross motion as one for summary judgment (CPLR 3211 [c]), the court is required to give notice to the parties.

A court may treat a preanswer motion to dismiss under CPLR 3211 and a postanswer summary judgment motion as one summary judgment motion when they raise the same issue and no prejudice results.

Wyndham Co. v. Wyndham Hotel Co. · filed 1992-11-27

Both the Yasskys’ postanswer motion for summary judgment (CPLR 3212) and the Wyndham defendants’ preanswer motion to dismiss (CPLR 3211) are based upon the contention that plaintiffs lack standing to seek relief for common-law trademark infringement or declaratory relief. Therefore, in the absence of any prejudice, the court will treat the motions as one for summary judgment.

A court may decline to treat a CPLR 3211 motion to dismiss as a motion for summary judgment.

Woodford v. Benedict Community Health Center · filed 1992-12-17(c)

We affirm. Under the circumstances, we see no abuse of discretion in Supreme Court’s refusal to treat defendants’ motion as one for summary judgment.

Section 3211(c) does not permit a court to summarily dismiss claims as a matter of law without a formal motion and adequate notice to the parties.

Loft Restaurant Associates, Ltd. v. McDonagh · filed 1992-11-23(c)

The Supreme Court improperly dismissed these causes of action as a matter of law without a formal motion having been made and without providing the parties with adequate notice of its intention to summarily resolve these causes of action (see generally, CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506).

CPLR 3211(c) permits a motion to dismiss to be treated as a summary judgment motion without formal notice when the parties have charted a course for summary judgment.

Kulier v. Harran Transportation Co. · filed 1993-01-19(c)

Although the plaintiffs were not given formal notice by the Supreme Court of its intention to treat MHT’s motion as one for summary judgment, we nevertheless conclude that summary judgment treatment is appropriate under the circumstances of this case, since the parties charted a course for summary judgment (see generally, Mihlovan v Grozavu, 72 NY2d 506; Four Seasons Hotels v Vinnik, 127 AD2d 310).

Section 3211(c) requires adequate notice before a court treats a motion to dismiss as a motion for summary judgment, even when issue has not been joined.

Valentine Transit, Inc. v. Kernizan · filed 1993-03-02(c)

Similarly, in the instant situation, the Supreme Court furnished no notice that it would give the case summary judgment treatment (see, Four Seasons Hotels v Vinnik, 127 AD2d ... 310, 318).

CPLR 3211(c) requires notice before a court grants a motion treated as one for summary judgment when the party may be prejudiced by the conversion.

Mayer v. Harris · filed 1993-03-08(c)

We therefore conclude that the motion should not have been granted in the absence of notice pursuant to CPLR 3211 (c).

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

De Rubbo v. Wayner Associates · filed 1993-04-22(c)

Initially, Supreme Court improperly treated the motion as one for summary judgment pursuant to CPLR 3211 (c). Such a conversion requires adequate notice to the parties (Mihlovan v Grozavu, 72 NY2d 506, 508), absent in this case, which fairly advises the parties of the issues it deems dispositive of the action (see, Four Seasons Hotel v Vinnik, 127 AD2d 310, 320).

CPLR 3211 (c) permits a motion to dismiss to be treated as a summary judgment motion when the parties have adequate notice.

Rotunno v. Rotunno · filed 1993-05-03(c)

CPLR 3211 (c) permits a motion pursuant to CPLR 3211 to be treated as one for summary judgment where adequate notice has been given to the parties.

CPLR 3211(c) does not require notice before a motion to dismiss is treated as one for summary judgment when the parties have deliberately charted a summary judgment course.

De La Poer v. Salomon Bros. · filed 1993-05-27(c)

We note that the IAS Court did not err in consolidating defendant Salomon’s motion to dismiss pursuant to CPLR 3211 (a) (1) and (7) with defendant Schlesinger’s motion for summary judgment pursuant to CPLR 3212, and in treating the former as a motion for summary judgment without giving notice pursuant to CPLR 3211 (c), since the parties submitted facts and arguments clearly indicating that they were " 'deliberately charting a summary judgment course’ ”

A court may treat a CPLR 3211 motion as one for summary judgment without advance notice when the parties’ papers show that they laid bare their proof and charted a summary judgment course.

Singer v. Boychuk · filed 1993-06-24(c)

While there is no indication on this record that Supreme Court gave the required notice and no contention is advanced that it was given during oral argument, we believe that, viewing the papers in their entirety, it can fairly be said that the parties laid bare their proof, submitting not only extensive documentation but evidentiary affidavits regarding the sum and substance of negotiations leading up to the 1980 assignment, and thus charted the summary judgment course.

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

Nassau Diagnostic Imaging & Radiation Oncology Associates v. Winthrop-University Hospital · filed 1993-10-12(c)

The court properly gave notice to the parties of its intention to treat the defendants’ motion to dismiss the complaint as a motion for summary judgment (see, CPLR 3211 [c]).

A court does not convert a CPLR 3211 motion to dismiss into summary judgment by denying it on the presented record while affording the plaintiff every favorable intendment.

Weston v. Club Mediterranee · filed 1993-10-21(a)(8)

Defendants seize on the court’s observation that "[d]efendants’ affidavits are drafted in a conclusory fashion and are insufficient to rebut plaintiff’s allegations and documentary evidence,” but the IAS Court did nothing more than deny the motion on the record presented to it, affording plaintiff every favorable intendment. Moreover, the court did not recite that it was converting the motion, nor did it treat it as such.

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

Mercedes-Benz Credit Corp. v. Dintino · filed 1993-11-19(c)

Supreme Court, without notifying the parties to that action of its intent to do so, "deemed” the motion to dismiss to be a motion for summary judgment and granted summary judgment in favor of Great Lakes and Mercedes-Benz of North America, Inc. That was error (see, CPLR 3211 [c]; Rich v Lefkovits, 56 NY2d 276, 281).

Section 3211(c) requires the court to notify the parties before converting a motion to dismiss into a motion for summary judgment.

Sopesis Constuction, Inc. v. Solomon · filed 1993-12-27(c)

However, before converting the defendants’ motion to one for summary judgment, the court was statutorily obligated to notify the parties of its intention to do so (see, CPLR 3211 [c]).

Under CPLR 3211(c), conversion of a motion to dismiss into a motion for summary judgment is improper when a factual question remains unresolved.

Morrison v. City of Buffalo Board of Education · filed 1993-12-29(c)

Supreme Court improperly converted respondent’s motion to dismiss the petition (CPLR 7804 [f]) into a motion for summary judgment ... (CPLR 3211 [c]) and granted summary judgment to petitioner. The motion to dismiss raised a question of fact whether respondent violated its policy in failing to hire petitioner.

Section 3211(c) permits a court to convert a motion to dismiss into a motion for summary judgment in its discretion.

Rogers v. Stall · filed 1994-01-06(c)

Plaintiffs’ argument that the instant motion to dismiss pursuant to CPLR 3211 (a) (2) was not properly converted into a motion for summary judgment upon notice to the parties pursuant to CPLR 3211 (c) is now academic as this Court, in the exercise of its discretion, converts the motion into one for summary judgment and remits the action to Supreme Court for further development of the record on these issues.

CPLR 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when both sides submit extensive affidavits, lay bare their proof, and deliberately chart that course.

Herlihy v. Metropolitan Museum of Art · filed 1994-01-10(c)

The court, in its discretion, will treat the instant motion as one for summary judgment (see, CPLR 3211 [c]), since both sides have submitted extensive affidavits, have laid bare their proof and have deliberately charted a summary judgment course (Four Seasons Hotels v Vinnik, 127 AD2d 310).

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

E & V Check Cashing Payroll Servs., Inc. v. Brodsky · filed 1994-02-22(c)

Moreover, we cannot treat the cross motion as one for summary judgment. CPLR 3211 (c) provides that "[wjhether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment”.

Section 3211(c) permits a motion to dismiss to be treated as a summary judgment motion when the parties have adequate notice.

TST/Impreso, Inc. v. Cosmos Forms, Ltd. · filed 1994-03-14(c)

While the plaintiff’s cross motion was technically premature (see, CPLR 3212 [a]; Hickey v Travelers Ins. Co., 158 AD2d 112, 114), CPLR 3211 (c) permits a motion pursuant to CPLR 3211 to be treated as one for summary judgment where "adequate notice” has been given to the parties. ... Accordingly, the appellant cannot claim that she lacked adequate notice that the issue of summary judgment was before the court (see, Rotunno v Rotunno, 193 AD2d 592; Marshall v Romano, 138 AD2d 360), particularly when the motion papers indicate that the parties were "deliberately charting a summary judgment course” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320; see, Mihlovan v Grozavu, 72 NY2d 506, 508).

A motion seeking summary judgment from the outset does not require notice that a CPLR 3211 motion is being converted to one for summary judgment.

Matthews v. Schlumberger Ltd. · filed 1994-03-31(c)

The IAS Court did not improperly treat the motion as one for summary judgment in violation of the notice requirement of CPLR 3211 motion that the court converted to a summary judgment motion, but was, ab initio, a motion for summary judgment as well.

A CPLR 3211 motion may be treated as a summary judgment motion when the parties deliberately chart a summary judgment course.

Bloss v. Va'ad Harabonim of Riverdale · filed 1994-04-05(c)

We note initially that the Supreme Court properly interpreted the motion and cross motions as deliberately charting a summary judgment course and, therefore, properly treated them as such (see, Mihlovan v Grozavu, 72 NY2d 506; Four Seasons Hotels v Vinnik, 127 AD2d 310).

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

Morey v. City of Gloversville · filed 1994-04-07(c)

Noting that on a motion to dismiss for failure to state a cause of action the court may consider such motion as one for summary judgment, we have consistently held that prior notice must be afforded to the parties of the court’s intention to so treat the motion (see, CPLR 3211 [c]; Matter of FYM Clinical Lab. v Perales, 147 AD2d 840, 841, affd 74 NY2d 539; Matter of Board of Educ. v State Educ. Dept., 116 AD2d 939, 941).

A court may treat a pre-answer CPLR 3211 motion as a summary judgment motion without giving notice when the parties deliberately lay bare their proof and chart a summary judgment course.

O'Dette v. Guzzardi · filed 1994-05-02

While generally a court’s election to treat a pre-answer CPLR 3211 motion as a motion pursuant to CPLR 3212 requires adequate notice to the parties (see, Rich v Lefkovits, 56 NY2d 276; DeSanctis v Laudeman, 169 AD2d 1026), this rule is inapplicable when it appears from a reading of the parties’ papers that they deliberately are charting a summary judgment course by laying bare their proof (see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

A court must give the parties notice before converting a motion to dismiss for failure to state a cause of action into one for summary judgment.

Martinez v. Pilgrim · filed 1994-07-25(a)(7)

Although the defendant’s motion sought dismissal of the complaint on the grounds that it failed to state causes of action, it appears that in connection with the plaintiff’s second cause of action the court improperly converted the motion to dismiss to one for summary judgment without providing notice to the parties (see, Mihlovan v Grozavu, 72 NY2d 506).

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

Torres v. Huntington Coalition for Homeless · filed 1994-07-25(c)

We find that the record does not clearly establish that the parties were given adequate notice that the motion would be treated as one for summary judgment, and an opportunity to make an appropriate record pursuant to CPLR 3211 (c) (see, Mihlovan v Grozavu, 72 NY2d 506; Rovello v Orofino Realty Co., 40 NY2d 633; E & V Check Cashing Payroll Servs. v Brodsky, 201 AD2d 610).

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

Canadian Imperial Bank of Commerce v. Tas · filed 1994-12-12(c)

However, CPLR 3211 (c) empowers a court, upon adequate notice to the parties, to treat a CPLR 3211 motion as one for summary judgment. Here, the parties were duly notified of the court’s intention and given an opportunity to respond. Thus, this court will now consider whether summary judgment on the complaint is appropriate.

A court may treat a CPLR 3211 motion to dismiss as a motion for summary judgment when there are no contested issues of fact.

Werger v. Riordan · filed 1995-01-11(c)

State and County respondents move pursuant to CPLR 3211 (a) (7) to dismiss the complaint on the grounds that this action may not be maintained because the petitioner has failed to state a cause of action. Petitioner opposes the motion. There being no contested issues of fact, the court treats the motion as a motion for summary judgment.

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

Board of Managers v. Carol Management, Inc. · filed 1995-04-13(c)

To the extent that the court below treated the initial motion to dismiss under CPLR 3211 as a motion for summary judgment under CPLR 3212, it erred in not providing appropriate notice to the responding party (CPLR 3211 [c]; see, Rovello v Orofino Realty Co., 40 NY2d 633, 635), and we accordingly treat the motion as one challenging only the sufficiency of the pleadings (see, Four Seasons Hotels v Vinnik, 127 AD2d 310).

Section 3211(c) requires notice and an opportunity to make an appropriate record before a court converts a motion to dismiss into a motion for summary judgment when the parties have not charted a summary judgment course.

Ward v. Bennett · filed 1995-04-24(c)

The Supreme Court erred in converting the respondents’ ... CPLR 3211 (a) (7) cross motion to dismiss into a motion for summary judgment pursuant to CPLR 3211 (c) without any request by the parties, without notice to the parties, and without giving the petitioners any opportunity to make an appropriate record (see, CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506, 508; Sopesis Constr. v Solomon, 199 AD2d 491, 492; compare, Dawson v Higgins, 197 AD2d 127, 137). The record does not indicate that the parties charted a "summary judgment course” of action (see, Mihlovan v Grozavu, supra).

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment after giving adequate notice of its intention to do so.

Bank Leumi Trust Co. v. Lightning Park, Inc. · filed 1995-05-18(c)

The court properly converted the motion to dismiss to one for summary judgment after giving adequate notice of its intention to do so (CPLR 3211 [c]; see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 319-320), and correctly found that defendant’s conclusory and unsupported claims of fraud and collusion between plaintiff and the guarantor do not raise an issue of fact (see, Friesch-Groningsche Hypotheekbank Realty Credit Corp. v Ward Equities, 188 AD2d 397).

Section 3211(c) generally requires notice before a court treats a motion to dismiss as one for summary judgment, giving the parties an opportunity to make an appropriate record.

Phillips v. Town of Clifton Park Water Authority · filed 1995-05-18(c)

Hence, in failing to give respondents the opportunity to answer and specifically address these issues, we find that the court’s conversion of the motion into one for summary judgment "deprived [respondents] of the 'opportunity to make an appropriate record’ and thus thwarted the very purpose of CPLR 3211 (c)” (Mihlovan v Grozavu, 72 NY2d 506, 508, supra, quoting Rovello v Orofino Realty Co., 40 NY2d 633, 635).

CPLR 3211(c) permits a court to treat a dismissal motion as one for summary judgment without separate notice when both sides specifically request summary judgment under that provision.

Shah v. Shah · filed 1995-05-23(c)

There are three exceptions to the notice requirement: (1) where the action in question involves no issues of fact but only issues of law which are fully appreciated and argued by both sides; (2) where a request for summary judgment pursuant to CPLR 3211 (c) is specifically made by both sides; and (3) where both sides deliberately lay bare their proof and make it clear they are charting a summary judgment course (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320; Mihlovan v Grozavu, 72 NY2d 506, 508).

CPLR 3211(c) requires notice before a court converts a motion to dismiss into one for summary judgment and considers affidavits for evidentiary support.

D'Agostino v. Harding · filed 1995-07-20(c)

Because the court did not notify the parties that it was converting the motion pursuant to CPLR 3211 (c), Supreme Court was not entitled to consider the affidavits submitted by the parties for the purpose of determining whether there was evidentiary support for the counterclaim (see, Pietrosanto v NYNEX Corp., 195 AD2d 843, 844).

Section 3211(c) permits a court to convert a motion to dismiss into a summary judgment motion without additional notice when the parties have deliberately pursued a summary judgment course.

Gregware v. Key Bank · filed 1995-08-03(c)

Moreover, the parties having submitted affidavits and documentary evidence and asserted arguments indicating an intention to "deliberately chart[ ] a summary judgment course” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320), Supreme Court was entitled to convert the application to a summary judgment motion without providing additional notice (see, Singer v Boychuk, 194 AD2d 1049, 10501051, lv denied 82 NY2d 657; Four Seasons Hotels v Vinnik, supra, at 320-321; cf., CPLR 3211 [c]).

A motion under CPLR 3211(b) may be treated as one for summary judgment when issue has been joined and the parties have deliberately charted a summary judgment course.

Flores v. Las Americas Communications, Inc. · filed 1995-08-24(b)

We further note that since issue had been joined and the parties clearly indicated that they were deliberately charting a summary judgment course, the IAS Court did not err in treating plaintiffs’ motion to dismiss pursuant to CPLR 3211 (b) as one for summary judgment pursuant to CPLR 3212 (Mihlovan v Grozavu, 72 NY2d 506).

Section 3211(c) permits a court to convert a motion to dismiss into a motion for summary judgment and give the parties an opportunity to make additional submissions.

Giller v. Harcourt Brace & Co. · filed 1995-10-02(c)

Pursuant to CPLR 3211 (c), the court converted the motion and cross motion to CPLR 3212 motions for summary judgment and afforded the parties an opportunity to make additional submissions.

Section 3211(c) permits a motion to dismiss to be treated as a summary judgment motion when the parties have submitted their proof and had a sufficient opportunity to make a record.

Herlihy v. Metropolitan Museum of Art · filed 1995-10-10(c)

Initially we find that the IAS Court did not abuse its discretion and properly treated the motion as one for summary judgment as all of the parties laid bare their proof and submitted extensive affidavits, giving plaintiff a sufficient opportunity to make an appropriate record.

Under CPLR 3211(c), lack of adequate notice that a motion to dismiss will be treated as one for summary judgment is not fatal when the parties seek summary disposition and lay bare their proof.

Phillips v. Sollami · filed 1995-10-26(c)

We note preliminarily that there was no error by Supreme Court in its treatment of the instant motion as one for summary judgment. Although it did not provide the parties with "adequate notice” of its intention to do so (see, CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506; Capital Wireless Corp. v Deloitte & Touche, 216 AD2d 663), such error was not fatal since the parties clearly sought a summary disposition when they laid bare their proof (see, supra, at 797; O’Dette v Guzzardi, 204 AD2d 291; Singer v Boychuk, 194 AD2d 1049, Iv denied 82 NY2d 657).

CPLR 3211(c) requires adequate notice before a court treats a motion to dismiss as one for summary judgment based on evidence first submitted in reply.

Brabender v. Incorporated Village of Northport · filed 1995-12-11(c)

In summarily dismissing the complaint based on this evidentiary material submitted for the first time in a reply affidavit, the court, in effect, converted the defendant’s motion into one for summary judgment (see, CPLR 3212) without having provided adequate notice to the parties (see, CPLR 3211 [c]). This was an error (see, Mihlovan v Grozavu, 72 NY2d 506; Matter of Ward v Bennett, 214 AD2d 741; Torres v Huntington Coalition for Homeless, 206 AD2d 518; Martinez v Pilgrim, 206 AD2d 512).

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

51 St. Nicholas Realty Corp. v. City of New York · filed 1996-01-09(c)

It is apparent from the court’s findings of fact that it treated the defendant’s motion made pursuant to CPLR 3211 (a) (7) as a motion for summary judgment pursuant to CPLR 3212. However, it did so tacitly without providing the parties with requisite notice as required by CPLR 3211 (c) (see, Rovello v Orofino Realty Co., supra, at 635).

CPLR 3211 permits a motion to dismiss to be treated as one for summary judgment when both parties submit substantial proof and deliberately chart a summary judgment course.

Gelmin v. Quicke · filed 1996-02-13(c), (a)(7)

The Supreme Court did not err when it treated the defendants’ motion to dismiss pursuant to CPLR 3211 (c) and CPLR 3211 (a) (7) as one for summary judgment. It is clear from, inter alia, the significant factual submissions proffered by both parties that they were laying bare their proof and "deliberately charting a summary judgment course” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320). Accordingly, the submissions were properly scrutinized to determine whether the plaintiffs had a cause of action, not just whether one had been properly stated (see, Bailey v Diamond Intl. Corp., 47 AD2d 363).

CPLR 3211(c) permits a court to treat a motion as one for summary judgment when the parties deliberately chart that course; otherwise, conversion requires notice and an opportunity to make an appropriate record.

Glendora v. Kofalt · filed 1996-02-13(c)

The Supreme Court erred in converting the plaintiffs CPLR 3211 (b) cross motion into a motion for summary judgment pursuant to CPLR 3211 (c) without any request by the parties, without notice to the parties, and without giving Cablevision an opportunity to make an appropriate record (see, CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506, 508; Sopesis Constr. v Solomon, 199 AD2d 491, 492).

When the parties submit all their proof and deliberately pursue summary judgment, the court may treat a preanswer motion to dismiss as one for summary judgment without additional notice.

Fourth Avenue Owners Corp. v. Geshwind · filed 1996-06-27(c)

Nor is there merit to defendant’s contention that the motion court erred in not giving notice that it would be ...treating defendant’s preanswer motion to dismiss as one for summary judgment (CPLR 3211 [c]), it being clear that the parties were submitting all their proof on the subject of maintenance then owing, and thereby deliberately charting a summary judgment course (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

CPLR 3211(c) permits a court to treat a motion to dismiss as one for summary judgment but does not require it to do so.

SPI Communications, Inc. v. WTZA-TV Associates Ltd. Partnership · filed 1996-07-03(c)

Although the applicable rule provides that Supreme Court may, under certain circumstances, treat a motion to dismiss as one for summary judgment, it is not required to do so. In view of the fact that the action is, as Supreme Court noted, in its earliest stages, and no discovery has been had, the court’s decision not to accept defendant’s invitation to convert the motion to one for summary judgment was not an abuse of its discretion (cf., Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

CPLR 3211(c) does not require express notice that a motion to dismiss will be treated as one for summary judgment when both sides deliberately pursue summary judgment.

Weichert v. Kimber · filed 1996-07-12(c)

The court is not required to give a party express notice of such intention where, as here, "both sides deliberately charted a summary judgment course” (Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 255; see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

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

New York Ass'n of Convenience Stores v. Urbach · filed 1996-08-13(c)

The court, pursuant to CPLR 3211 (c) and 3212 (b), has converted this motion to a reciprocal motion for summary judgment.

A court may treat a CPLR 3211 motion to dismiss as a summary judgment motion when the parties’ evidentiary submissions show they deliberately charted a summary judgment course.

Elsky v. Hearst Corp. · filed 1996-10-29

Although the IAS Court treated defendants’ motion as one to dismiss pursuant to CPLR 3211, this Court will treat it as one for summary judgment, the parties’ evidentiary submissions "clearly indicating that they were 'deliberately charting a summary judgment course’ ” (Mihlovan v Grozavu, 72 NY2d 506, 508, quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

Section 3211(c) permits a court to grant summary judgment without advance notice when only questions of law remain and both sides have fully argued them.

Scattergood v. Jamaica Water Securities Corp. · filed 1996-12-05(c)

Here, where there were no issues of fact but only of law involved which were fully argued and appreciated by both sides, Supreme Court properly granted summary judgment without first giving notice of its intention to do so (see, Mihlovan v Grozavu, 72 NY2d 506, 508; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320; see also, CPLR 3211 [c]).

CPLR 3211(c) requires notice before a motion to dismiss is treated as a motion for summary judgment so the parties can make an appropriate record.

Williams v. DeCarlo · filed 1997-01-16(c)

We agree with plaintiffs that the court, in effect, treated the motion as one for summary judgment without giving proper notice to the parties so that they could make an appropriate record ... As this was error, the complaint should not have been dismissed in its entirety.

A motion expressly seeking summary judgment and opposed as such need not be treated as a motion directed only to the pleadings under section 3211.

Coughlin v. International Business Machines Corp. · filed 1996-12-05

At the outset, we note that inasmuch as defendant’s notice of motion expressly sought "summary judgment” and referred to both CPLR 3211 (a) (5) and 3212, and plaintiffs’ attorney’s answering affidavit, self-described as being "in opposition to defendant’s motion for summary judgment”, expressly sought denial of "defendant’s motion for summary judgment”, plaintiffs’ claim that the motion must be treated as one directed to the pleadings only, pursuant to CPLR 3211, must be rejected (see, Monteferrante v New York City Fire Dept., 63 AD2d 576, affd 47 NY2d 737).