N.Y. C.P.L.R. § 3211

Section 3211(c) permits Family Court to convert a motion to dismiss into a motion for summary judgment when the Family Court Act supplies no procedure for doing so.

Patricia YY. v. Albany County Department of Social Services · filed 1997-04-10(c)

Next, we reject petitioner’s contention that Family Court erred in converting the motion to dismiss into a motion for summary judgment. The Family Court Act does not prescribe a method or procedure for treating a motion to dismiss pursuant to CPLR 3211 or for converting such a motion into a motion for summary judgment. Therefore, pursuant to Family Court § 165 (a), the trial court’s reliance on the CPLR was proper (see, Rovello v Orofino Realty Co., 40 NY2d 633, 635).

Before treating a CPLR 3211 motion to dismiss as a motion for summary judgment, the court must notify the parties of its intention to do so.

Porowski v. Mason · filed 1997-04-28(c)

This essentially awarded the plaintiff summary judgment in the amount of $6,400 and was improper since, before treating the CPLR 3211 motion to dismiss a complaint as a motion for summary judgment, the court should have given the parties notice of its intention to do so (see, Spoesis Constr. v Solomon, 199 AD2d 491).

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

Huggins v. Whitney · filed 1997-05-08(c)

The motion court erred in converting the motion to dismiss the amended complaint into a motion for summary judgment without providing CPLR 3211 (c) notice to the parties.

Section 3211(c) is the proper basis for dismissal when the court determines that the plaintiff has failed to raise a triable issue of fact.

Stevenson v. City of Rome · filed 1997-03-14(c)

Memorandum: Although Supreme Court properly granted defendants’ motion to dismiss the complaint, it should have done so pursuant to CPLR 3211 (c), rather than CPLR 3211 (a) (7).

Section 3211(c) requires notice before a motion to dismiss is treated as one for summary judgment; without that notice, appellate review is limited to whether the complaint states a viable cause of action.

LaLonde v. Hurteau · filed 1997-05-22(c)

Initially, inasmuch as Supreme Court characterized the Village’s motion as one for summary judgment without affording the parties the notice required by CPLR 3211 (c), our review is limited to whether plaintiff has a viable cause of action (see, 51 St. Nicholas Realty Corp. v City of New York, 218 AD2d 343, 348).

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment after giving the parties notice and an opportunity to submit additional papers.

Quality Ford of Mt. Vernon, Inc. v. Metro Auto Leasing, Inc. · filed 1997-05-22(c)

Neither party has requested a conversion of the motion to dismiss into one for summary judgment. While the court could have given notice to the parties that it would treat the motion as one for summary judgment and thereby delay the disposition to permit submission of additional papers, it chose not to do so to expedite resolution of the seizure issue. (Cf., CPLR 3211 [c].)

Section 3211 permits parties to waive in writing the court’s notice of summary judgment treatment, allowing the court to consider the motions.

Christ v. Brontman · filed 1997-12-29(c)

However, issue has not been joined in this case as no answer has been served. Counsel for both parties submitted consent in writing waiving notice by the court of treatment of the motion for summary judgment pursuant to CPLR 3211. Therefore, this court will consider the motions for summary judgment.

A CPLR 3211(b) motion may be treated as one for summary judgment without notice when no factual issue remains to be decided.

Board of Managers of the Garden Terrace Condominium v. Chiang · filed 1998-02-10(b)

The court also properly treated plaintiffs CPLR 3211 (b) motion as one for summary judgment and there was no need for notice of its intention to do so because there was no factual issue left to be decided by the court, defendants having admitted that they had not paid the common charges plaintiff seeks to recover.

A party that treats a CPLR 3211 motion as one for summary judgment and lays bare its proof cannot later claim it lacked notice of the conversion.

MacDonald v. Prudential Securities Inc. · filed 1998-02-26(c)

Plaintiffs themselves deemed defendants’ motion as one for summary judgment, submitting affidavits and arguments in opposition that clearly indicated that they were laying bare their proof, and therefore cannot now claim that they were not given CPLR 3211 (c) notice (see, Mihlovan v Grozavu, 72 NY2d 506, 508; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320-321).

A court has discretion to reject a request under CPLR 3211(c) to treat a motion to dismiss as one for summary judgment.

Luke Industries, Inc. v. Prominent Apparel (America), Inc. · filed 1998-03-05(c)

Although it was inappropriate for the motion court to characterize defendants’ CPLR 3211 (c) request as an attempt “to subvert the requirement of CPLR 3212 (a) [that] an answer be served first”, rejection of the request was a proper exercise of discretion (see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

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

Lang v. Pataki · filed 1998-03-30(c)

However, plaintiffs and other parties objected on various grounds and since appropriate notice had not been given prior to submission, consideration of the motion on the basis of CPLR 3211 (c) was not appropriate.

A court must give the parties notice before converting a CPLR 3211 motion to dismiss into a motion for summary judgment.

Roth v. Goldman · filed 1998-10-19(c)

Insofar as the court in effect converted the defendant’s motion into one for summary judgment, it erred, as he failed to first give notice to the parties (see, Matter of Ward v Bennett, 214 AD2d 741, 742-743; Sopesis Constr. v Solomon, 199 AD2d 491).

A CPLR 3211 motion made after the defendant answers may be treated as a summary judgment motion when the opposing party has notice and an opportunity to submit evidence.

Compania Tauben S. A. v. Stolt Tankers Inc. · filed 1998-12-07

First, because Stolt had filed its answer prior to filing its motion, the proper interpretation of the motion is one for summary judgment. ... Third, because Tauben has received notice of the request to convert the motion to one for summary judgment, and because Tauben has submitted additional documents and affidavits into the record, a conversion would not prejudice Tauben. ... Accordingly, Stolt’s motion will be treated as one for summary judgment.

Section 3211(c) requires notice before a court treats a pre-answer motion to dismiss as one for summary judgment and decides the claim on the merits.

Boyle v. Town of Woodstock · filed 1999-01-07(c)

Inasmuch as respondents did not file an answer to the amended complaint/petition, and Supreme Court did not give notice under CPLR 3211 (c) that it would treat respondents’ motions as one for summary judgment, it was error for the court to determine the claim on the merits.

Under CPLR 3211(c), a court should not treat a motion to dismiss as a summary judgment motion without notice to the parties when factual disputes require further development.

Wilmoth v. Sandor · filed 1999-03-02(c)

Given the largely factual nature of the dispute, consideration of contractual obligation should await joinder of issue, and the court should not accord summary judgment treatment absent notice to the parties (Four Season Hotels v Vinnik, 127 AD2d 310, 318; see also, Mihlovan v Grozavu, 72 NY2d 506, 508).

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

Henbest & Morrisey, Inc. v. W. H. Insurance Agency · filed 1999-03-04(c)

Further, although a motion to dismiss pursuant to CPLR 3211 (a) (7) may, and often should, be converted to a summary judgment motion by the court after adequate notice to the parties (CPLR 3211 [c]), no such notice appears to have been given in this case.

Failure to oppose a summary judgment motion does not convert it into a CPLR 3211 motion testing the adequacy of the pleadings.

Tortorello v. Carlin · filed 1999-04-13

Succinctly stated, the failure to oppose a motion for summary judgment under CPLR 3212 does not operate to convert the application into one pursuant to CPLR 3211, permitting the court to confine its consideration to the adequacy of the pleadings.

CPLR 3211(c) permits a court to treat a pre-answer motion to dismiss as a summary judgment motion when the parties have laid bare their proof and treated the motion that way.

Alvero v. Allen · filed 1999-06-14(c)

The parties clearly laid bare their proof, and treated the motion as one for summary judgment. The Supreme Court was therefore authorized to treat the pre-answer application pursuant to CPLR 3211 (a) (7) as one for summary judgment (see, CPLR 3211 [c]; see, e.g., MacDonald v Prudential Sec., 247 AD2d 346; Palazolo v Palazolo, 244 AD2d 393; Gelmin v Quicke, 224 AD2d 481).

Section 3211(c) requires notice to the parties before a court treats a motion to dismiss as one for summary judgment and considers affidavits on that basis.

Dabb v. NYNEX Corp. · filed 1999-06-18(c)

Because the court did not notify the parties that it was treating the motion as one for summary judgment pursuant to CPLR 3211 (c), the court erred in considering defendant’s affidavits (see, Pietrosanto v NYNEX Corp., 195 AD2d 843, citing Rovello v Orofino Realty Co., 40 NY2d 633, 635).

CPLR 3211(c) requires notice to the parties before a motion to dismiss may be converted into a motion for summary judgment.

Jann v. Cassidy · filed 1999-10-01(c)

Further, the court could not properly convert defendant’s motion to dismiss the complaint into a motion for summary judgment because notice thereof was not provided to the parties (see, CPLR 3211 [c]; Markle Found, v Manufacturers Hanover Trust Co., 173 AD2d 784, 785-786).

Whether a CPLR 3211(a)(7) motion was converted to a motion for summary judgment depends on the record.

Eastman v. Department of Citywide Administrative Services · filed 1999-11-16(a)(7)

The record does not support petitioner’s claim that Supreme Court converted respondents’ CPLR 3211 (a) (7) motion to a motion for summary judgment.

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment despite insufficient notice when the parties have laid bare their proof.

New York State Higher Education Services Corp. v. Barry · filed 1999-12-02(c)

Despite the absence of sufficient notice to the parties of the court’s intent to proceed in this manner (see, CPLR 3211 [c]; Phillips v Sollami, 220 AD2d 946, 947), this omission ... was not fatal since the parties laid bare their proof (see, Capital Wireless Corp. v Deloitte & Touche, 216 AD2d 663, 665-666).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the parties have prior notice or have otherwise shown they understood that summary judgment was at issue.

Wadsworth v. Beaudet · filed 1999-12-16(c)

In this case, the record discloses no notice by Supreme Court of its intention to treat the motion as one for summary judgment; in fact, no party contends that any such notice was given. Further, although plaintiff made some effort to controvert the evidence presented in support of the Diocese’s motion, it is clear from his opposition to the motion that there was no intention to chart a summary judgment course.

A court may treat a CPLR 3211 motion as one for summary judgment when the parties reveal their proof and clearly chart a summary judgment course.

Mic Property & Casualty Insurance v. Custom Craftsman of Brooklyn, Inc. · filed 2000-02-29

The trial court properly exercised its discretion in treating Seneca’s motion, brought pursuant to CPLR 3211, as one for summary judgment, since the parties revealed their proof and, in so doing, clearly charted a summary judgment course (cf., Huggins v Whitney, 239 AD2d 174).

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

Steiner v. Lazzaro & Gregory, P. C. · filed 2000-04-17(c)

The trial court erred when it converted the defendants’ motion pursuant to CPLR 3211 (a) (7) to one for summary judgment, since it failed to give notice to the parties (see, CPLR 3211 [c]; Rovello v Orofino Realty Co., 40 NY2d 633, 635).

When a motion to dismiss is not converted to a motion for summary judgment under CPLR 3211(c), plaintiffs need not submit evidence supporting their pleadings.

German v. Bruins Transportation, Inc. · filed 2000-05-15(c)

Here, the Supreme Court did not convert the appellant’s pre-answer motions to motions for summary judgment (see, CPLR 3211 [c]). Thus, the plaintiffs may not be penalized for failing to interpose evidentiary submissions (see, Rich v Lefkovits, 56 NY2d 276; Rovello v Orofino Realty Co., supra).

Section 3211(c) requires notice before a court treats a motion to dismiss as a summary judgment motion, so the parties can make an appropriate record.

Bacchiocchi v. Ranch Parachute Club, Ltd. · filed 2000-06-29(c)

While a CPLR 3211 motion may be treated as a summary judgment motion, CPLR 3211 (c) requires the court to give notice of its intention so that a party is not deprived of the “ ‘opportunity to make an appropriate record’ ” by an unanticipated award of summary judgment (Mihlovan v Grozavu, 72 NY2d 506, 508, quoting Rovello v Orofino Realty Co., 40 NY2d 633, 635). Therefore, Supreme Court’s disposition is premature.

A CPLR 3211 motion may be converted to a summary judgment motion after the parties are advised and do not object.

Kabia v. Koch · filed 2000-06-30

Defendant’s CPLR 3211 motion was converted to a CPLR 3212 motion for summary judgment, which the parties were so advised and did not object at the motional hearing.

Section 3211(c) does not require notice before treating a motion to dismiss as one for summary judgment where the issues are purely legal, the movant expressly requests summary judgment, and both sides chart a summary judgment course.

Tops Markets v. S&R Co. · filed 2000-09-29(c)

We reject the contention of defendant that it did not receive notice, as required by CPLR 3211 (c), of the court’s intention to treat its motion as a motion for summary judgment. Such notice is not required where, as here, the action involves purely legal issues rather than factual issues (see, Shah v Shah, 215 AD2d 287, 289; cf., Mihlovan v Grozavu, 72 NY2d 506, 508), defendant expressly requested summary judgment (see, Wein v City of New York, 36 NY2d 610, 620-621; see also, Shah v Shah, supra, at 289) and “both sides deliberately charted a summary judgment course” (Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 255; see, Weichert v Kimber, 229 AD2d 998, 999).

A motion to dismiss under CPLR 3211(a)(7) may be treated as a summary judgment motion when the motion papers show that the parties clearly charted a summary judgment course.

1300 Avenue P Realty Corp. v. Stratigakis · filed 2000-12-05(a)(7)

We note that the court below properly treated defendants’ motion to dismiss pursuant to CPLR 3211 (a) (7) as a CPLR 3212 motion, since it appears from a reading of the motion papers that the parties clearly charted a summary judgment course (see, Singer v Boychuk, 194 AD2d 1049; see also, Shah v Shah, 215 AD2d 287).

Section 3211(c) does not require notice of conversion to summary judgment when the court dismisses the claims under section 3211(a).

Leblanc v. Security Services Unit Employees · filed 2000-12-21(c)

We also reject plaintiffs’ contention that the court improperly failed to notify the parties of its intention to treat the motion as a motion for summary judgment (see, CPLR 3211 [c]) inasmuch as the court dismissed plaintiffs’ claims pursuant to CPLR 3211 (a) and not CPLR 3211 (c).

A plaintiff who cross-moves for summary judgment under CPLR 3211(c) cannot claim lack of notice that summary judgment is before the court.

Kleinman v. Kleinman · filed 2001-03-12(c)

The defendant moved in the alternative for relief under CPLR 3211 (a) (7) and (c), and the plaintiffs cross-moved for summary judgment pursuant to CPLR 3211 (c). Accordingly, the plaintiffs cannot claim that they lacked notice that the issue of summary judgment was before the court (see, TST/Impreso, Inc. v Cosmos Forms, 202 AD2d 493).

Section 3211(c) permits a court to convert a motion to dismiss into a motion for summary judgment and give the parties time to submit additional papers.

Lara v. City of New York · filed 2001-03-20(c)

The Court converted these motions to motions for summary judgment pursuant to CPLR 3211 (c) and gave all parties time to submit additional papers.

Section 3211(c) permits a court to convert a motion to dismiss to one for summary judgment without notice when the case presents only legal issues fully argued by both sides.

Historic Albany Foundation v. Breslin · filed 2001-04-26(c)

While the notice to the parties required by that statute does not appear to have been given in this case, such notice of the court’s intent to convert a motion to dismiss to one for summary judgment may be excepted where “the action involves no issues of fact, but only issues of law fully appreciated and argued by both sides” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320). Here, the issue raised by defendants on their motion to dismiss is one of law fully briefed and argued by the parties.

Section 3211(c) requires notice before a court converts a motion to dismiss into one for summary judgment when issue has not been joined.

Lockheed Martin Corp. v. Aatlas Commerce, Inc. · filed 2001-05-17(c)

Initially, we find that Supreme Court erred in deciding defendants’ motions pursuant to CPLR 3212 given that issue was not joined and notice of conversion of the motions was not given to the parties by the court pursuant to CPLR 3211 (c).

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

Blackburn v. James J. Shapiro PA, Inc. · filed 2001-11-09(c)

Supreme Court erred in treating the motion as one for summary judgment without first providing adequate notice to the parties that it was doing so (see, CPLR 3211 [c]; D’Agostino v Harding, 217 AD2d 835, 837; see also, Mihlovan v Grozavu, 72 NY2d 506, 508; Glendora v Kofalt, 224 AD2d 485, 486, lv dismissed 88 NY2d 919).

Considering submissions opposing a CPLR 3211(a)(7) motion does not necessarily convert it into a motion for summary judgment under CPLR 3211(c).

Reno v. County of Westchester · filed 2001-12-03(c)

Contrary to the plaintiffs’ contention, the Supreme Court did not convert the motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) into one for summary judgment (see, CPLR 3211 [c]).

CPLR 3211(c) permits conversion of a motion to dismiss into one for summary judgment when the party receives notice and an opportunity to make factual submissions.

Osipova v. J & J Hotel Co. · filed 2002-01-24(c)

The municipal defendants’ motion to dismiss was properly converted into one for summary judgment pursuant to CPLR 3211 (c). Contrary to plaintiffs argument, she was afforded the requisite notice of the conversion and opportunity to make factual submissions.

CPLR 3211(c) requires notice before a court treats a motion to dismiss as one for summary judgment, giving the opposing party an opportunity to submit evidence.

Santos v. State · filed 2002-02-01(c)

Here, the court erred in treating the motion as one for summary judgment without giving notice of its intention to do so, as required by CPLR 3211 (c), thus effectively depriving claimant of the opportunity ... present any evidence in opposition.

Section 3211(c) requires notice before a motion to dismiss is treated as a summary judgment motion, but notice is unnecessary when the parties have laid bare their proof.

Kavoukian v. Kaletta · filed 2002-05-02(c)

Under these circumstances, although the parties are entitled to notice that the motion will be accorded summary judgment treatment (see, CPLR 3211 [c]; Rich v Lefkovits, supra at 278-279), we find such notice unnecessary in this matter since our review of the record indicates that the parties “laid bare” their proof by, inter alia, submitting affidavits and other documentary proof (see, New York State Higher Educ. Servs. Corp. v Barry, 267 AD2d 567, 567-568; Phillips v Sollami, 220 AD2d 946, 947; Capital Wireless Corp. v Deloitte & Touche, 216 AD2d 663, 665-666; see also, 97 NY Jur 2d, Summary Judgment and Pretrial Motions to Dismiss § 175, at 394-395).

CPLR 3211(c) permits a motion to dismiss to be treated as a summary judgment motion, even before joinder of issue, upon proper notice and submission of evidentiary materials.

Wilson v. City of New York · filed 2002-05-30(c)

At the outset, we note that Wilson’s initial protestations against treating defendant’s motion as one for summary judgment were not properly supported. Notably, CPLR 3211 (c) permits such treatment, even without joinder of issue, upon proper notice and the submission of evidentiary materials.

After an answer is filed, a court may notify the parties that it will treat a CPLR 3211(a) motion as one for summary judgment.

Lewis v. DiDonna · filed 2002-05-30(e)

Where a motion pursuant to CPLR 3211 (a) is made postanswer, a court may notify the parties that the motion will be accorded summary judgment status (see, CPLR 3211 [e]).

A pre-answer motion to dismiss may be treated as a motion for summary judgment when the parties deliberately chart a summary judgment course.

Dunn v. B&H Associates · filed 2002-06-10(c)

Although this motion was pre-answer, it was properly treated, where warranted, as one for summary judgment.

Section 3211(c) requires notice before a court converts a motion to dismiss into one for summary judgment, unless the parties have charted or consented to a summary judgment course.

Pitts v. City of Buffalo · filed 2002-10-31(c)

The requisite notice of the conversion of the cross motion was not given to the parties by the court pursuant to CPLR 3211 (c) (see Lockheed Martin Corp. v Aatlas Commerce, 283 AD2d 801, 802). The court therefore lacked power to search the record and grant summary judgment to plaintiff, absent any indication that defendants charted or consented to a summary judgment course (see Mihlovan v Grozavu, 72 NY2d 506, 508; Lockheed Martin Corp., 283 AD2d at 802-803; cf. Tops Mkts. v S&R Co. of W. Seneca, 275 AD2d 988; Village of Webster v Monroe County Water Auth., 269 AD2d 781, 782).

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

Weiss v. North Shore Towers Apartments Inc. · filed 2002-12-23(c)

The Supreme .Court, in effect, converted the motion to dismiss the petition for failure to state a cause of action into a motion for summary judgment without providing CPLR 3211 (c) notice to the parties. However, none of the recognized exceptions to the notice requirement is applicable here.

Section 3211(c) does not require notice of conversion to summary judgment when the court considers factual materials only to remedy pleading defects and determine whether the allegations state a justiciable controversy.

Niagara Mohawk Power Corp. v. State · filed 2002-12-26(c)

The court did not delve into a summary judgment analysis, but focused on whether the facts alleged stated any justiciable controversy. Accordingly, we perceive no error in this regard.

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

Shatkin v. Health · filed 2002-12-30(c)

Supreme Court properly treated defendant’s motion as one for summary judgment despite the fact that issue was not joined (see CPLR 3211 [c]) but erred in denying the motion.

Section 3211(c) requires notice before a court converts a motion to dismiss into a motion for summary judgment, unless the parties expressly seek summary judgment or deliberately pursue that course.

Carcone v. D'Angelo Insurance Agency · filed 2003-02-07(c)

Although a court may convert such a motion pursuant to CPLR 3211 (c), the court must give the parties notice of its intent to do so (see id.; see e.g. Mihlovan v Grozavu, 72 NY2d 506, 508; Pitts v City of Buffalo, 298 AD2d 1003; Village of Webster v Monroe County Water Auth., 269 AD2d 781, 782).

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

B.W.H.N.V. Associates v. Sun Lee Deli & Grocery, Inc. · filed 2003-02-19(c)

In this respect, the court impermissibly treated the motion as one for summary judgment, there being no record showing of “adequate notice to the parties” (see, CPLR 3211 [c]).

CPLR 3211(c) requires adequate notice before a court converts a motion to dismiss to one for summary judgment; a defendant’s unilateral request for summary judgment as alternative relief does not provide that notice.

Wiesen v. New York University · filed 2003-04-24(c)

Moreover, none of the delineated exceptions apply in this matter, and the fact that defendant, almost as an aside, unilaterally requested summary judgment as alternative relief does not constitute adequate notice so as to comply with CPLR 3211 (c) (see Mihlovan v Grozavu, supra at 508 n).

CPLR 3211(c) requires notice before a court converts a motion to dismiss into a motion for summary judgment unless a recognized exception applies.

9394 LLC v. Farris · filed 2003-04-28(c)

The Supreme Court, in effect, converted the defendants’ motion to dismiss the complaint for failure to state a cause of action into a motion for summary judgment without providing ... notice to the parties as set forth in CPLR 3211 (c) (see Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]). However, none of the recognized exceptions to the notice requirement is applicable here.

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 time to make further submissions.

Troy Boiler Works, Inc. v. Sterile Technologies, Inc. · filed 2003-06-20(c)

Defendant conceded that its motion to dismiss is untimely in view of CPLR 3211 (e), but requested that since there is no dispute as to the facts with respect to the statute of limitations issue, that the court treat the motion as a motion for summary judgment pursuant to CPLR 3211 (c). In view of defendant’s request, the court by letter dated May 13, 2003, notified the parties that it would be treating the instant motion as a motion for summary judgment in regard to the defense of the statute of limitations set forth in UCC 2-725. The parties were each given additional time to submit anything further on the motion in regard to the statute of limitations issue only.

CPLR 3211(c) requires notice before a court converts a motion to dismiss into a motion for summary judgment unless a recognized exception applies.

Shabtai v. City of New York · filed 2003-09-22(c)

The court converted the motions by various defendants to dismiss the complaint pursuant to CPLR 3211 into motions for summary judgment without providing notice to the parties as set forth in CPLR 3211 (c) (see Rovello v Oroft.no Realty Co., 40 NY2d 633, 634 [1976]). However, none of the recognized exceptions to the notice requirement are applicable here. ... Therefore, the Supreme Court improperly converted the motions to dismiss the complaint to motions for summary judgment.

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

Bronner v. Butterfield · filed 2003-12-08(c)

A court’s election to treat a pre-answer motion to dismiss as a motion for summary judgment generally requires adequate notice to the parties (see CPLR 3211 [c]). The defendant’s contention that the rule does not apply in this case because the parties were deliberately charting a course for summary judgment is belied by a confusing record in which the issue of how the plaintiff expected the motion to be treated was at best unclear.

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

Wyllie v. District Attorney · filed 2003-12-22(c)

The Supreme Court properly treated the municipal defendants’ motion to dismiss as one for summary judgment (see CPLR 3211 [c]).

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

Mishkin v. 155 Condominium, Bd. of Mgrs. of 155 Condominium · filed 2004-02-19(c)

By notice dated October 2, 2003, the court informed the parties of its intention to treat the motion and cross-motion as a motion and cross-motion for summary judgment (CPLR 3211 [c]). ... By letters dated October 14, 2003, counsel consented. ... ORDERED that respondents' cross-motion for summary judgment dismissing the verified petition is granted, and the same is hereby dismissed; and it is further ORDERED that the clerk is directed to enter judgment accordingly.

A court may treat a CPLR 3211 motion to dismiss as a motion for summary judgment after giving adequate notice and an opportunity to submit additional papers.

Monahan v. Monahan · filed 2004-02-23(c)

With regard to the defendant's contention that there were no material disputed issues of facts and that he was entitled to a judgment dismissing the complaint as a matter of law, the order dated December 11, 2003 afforded the parties adequate notice that it intended to treat defendant's motion to dismiss for failure to state a cause of action under CPLR 3211[a] as a motion for summary judgment on the merits pursuant to CPLR 3212, and the parties were given the opportunity to submit additional papers.

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

Lake Carmel Fire Dept., Inc. v. Utica First Ins. Co. · filed 2004-03-15(c)

As requested by the parties, pursuant to CPLR 3211[c], this court will treat the motion and the cross motion as being for summary judgment.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the court invokes that procedure.

Lutine Realty Corp. v. Perry Films, Inc. · filed 2004-03-23(c)

Plaintiff's motion for summary judgment is denied as issue has not been joined pursuant to CPLR 3212 (a) and this court has not invoked CPLR 3211 (c).

Section 3211(c) permits a court to treat a dismissal motion as one for summary judgment when the movants also seek summary judgment and clearly chart that course.

Nesenoff v. Dinerstein & Lesser, P.C. · filed 2004-03-29(c)

The Supreme Court properly treated the motion solely as one for summary judgment since the defendants moved for summary judgment, among other relief, and clearly charted a summary judgment course (see CPLR 3211 [c]; Matter of Weiss v North Shore Towers Apts., 300 AD2d 596 [2002]; cf. Rich v Lefkovits, 56 NY2d 276 [1982]).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the matter involves solely questions of law.

WFR Associates v. Memorial Hospital · filed 2004-04-18(c)

Here, the court determines that treatment pursuant to CPLR 3211 (c) is warranted because the matter involves solely questions of law.

Section 3211(c) permits a court to convert a motion to dismiss into a summary judgment motion without notice when the dispute involves only questions of law fully appreciated and argued by both sides.

Wfr Assocs. v. Mem. Hosp. · filed 2004-04-18(c)

The court, however, exercises its inherent discretion and converts the motion to dismiss into a motion for summary judgment ( see , CPLR 3211 [c]). In so doing, the court notes that the notice to the parties required by the statute is unnecessary where the controversy involves "issues of law fully appreciated and argued by both sides" ( Four Seasons Hotels v Vinnik , 127 AD2d 310, 320 [1987]; see , Historic Albany Found. v Breslin, supra ). Here, the court determines that treatment pursuant to CPLR 3211 (c) is warranted because the matter involves solely questions of law.

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

Acquisitions Plus v. Shapiro · filed 2004-05-20(c)

First, we reject Acquisition’s argument that the Shapiros’ cross motion for summary judgment in proceeding No. 3 should have been denied because issue had not yet been joined. The record is clear that Supreme Court properly notified both sides that Acquisition’s CPLR 3211 motion would be treated as a motion for summary judgment and invited any additional submissions that the parties deemed appropriate. Having been given such notice and opportunity to respond, no further submissions were made.

Section 3211(c) permits a court to convert a motion to dismiss into a motion for summary judgment without notice when only questions of law remain, the parties have fully briefed them, and one party requests that treatment.

Spilka v. Town of Inlet · filed 2004-06-10(c)

This Court may convert a motion to dismiss to a motion for summary judgment (see CPLR 3211 [c]), and the notice of such conversion is excepted where only questions of law are raised, they have been fully briefed by the parties and such treatment is requested by one party (see Historic Albany Found. v Breslin, 282 AD2d 981, 983-984 [2001], lv dismissed 97 NY2d 636 [2001]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]).

A court may treat a CPLR 3211(a)(7) motion as seeking summary judgment when the parties deliberately chart a summary judgment course by submitting facts and arguments.

Ubaydah v. State Farm Mutual Automobile Insurance · filed 2004-06-14(a)(7)

Although only one of the Tim Horton’s defendants moved pursuant to CPLR 3212 while the other two moved pursuant to CPLR 3211 (a) (7), all of the parties submitted “facts and arguments clearly indicating that they were deliberately charting a summary judgment course” (Carcone v D’Angelo Ins. Agency, 302 AD2d 963, 963 [2003] [internal quotation marks omitted]). We thus conclude that the court properly treated all of the motions and cross motions as in effect seeking summary judgment (see Clark v State of New York [appeal No. 2], 302 AD2d 942, 944 [2003]).

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

Rochester City School District v. County of Monroe · filed 2004-12-30(c)

The court gave “adequate notice to the parties” of its intention to treat the motion as one for summary judgment and further gave the parties an opportunity to lay bare their proof (CPLR 3211 [c]; ...).

Section 3211(c) permits a court, upon proper notice, to convert a motion to dismiss into a motion for summary judgment only when a section 3211(a) or (b) motion involves the party receiving or facing relief.

Mann v. Rusk · filed 2005-01-20(c)

While a court may, upon proper notice, convert a motion to dismiss a cause of action or a motion to dismiss a defense into a motion for summary judgment under CPLR 3211 (c), the statute expressly contemplates the existence of a CPLR 3211 (a) or (b) motion involving the party to whom or against whom relief is granted.

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

Ward v. Guardian Industries Corp. · filed 2005-04-29(c)

Pursuant to CPLR 3211 (c), the court could have treated defendant’s motion to dismiss as one for summary judgment and granted relief to either party, but to do so the court was required to give notice to the parties, and it did not give such notice here (see Pitts, 298 AD2d at 1004-1005; Jann v Cassidy, 265 AD2d 873, 874 [1999]).

A court may convert a CPLR 3211 motion to dismiss into a motion for summary judgment when both parties make clear that they are presenting their proof and pursuing summary judgment.

Jamison v. Jamison · filed 2005-05-23(c)

The court properly, in effect, converted the motion to dismiss to one for summary judgment because both parties made “it unequivocally clear that they [were] laying bare their proof and deliberately charting a summary judgment course” (Four Seasons Hotels Ltd. v Vinnik, 127 AD2d 310, 320 [1987]).

CPLR 3211(c) requires notice before a court converts a motion to dismiss into one for summary judgment unless an exception applies.

Moutafis v. Osborne · filed 2005-05-23(c)

The Supreme Court erred in converting the defendant’s motion to dismiss the complaint, pursuant to CPLR 3211 (a) (5) into one for summary judgment without providing notice to the parties as set forth in CPLR 3211 (c) (see Rovello v Orofino Realty Co., 40 NY2d 633 [1976]). None of the recognized exceptions to the notice requirement is applicable here.

A motion mislabeled as one under CPLR 3211 ordinarily requires notice and an opportunity to respond before it is treated as a summary judgment motion, but the mislabeling may be disregarded if it causes no prejudice.

Schultz v. Estate of Sloan · filed 2005-07-18

Ordinarily, if a party mislabels a CPLR 3212 motion as a motion pursuant to CPLR 3211, the opponent of the motion must be notified that the motion will be treated as one for summary judgment and given the opportunity to respond to the motion as such (see Rich v Lefkovits, 56 NY2d 276, 282 [1982]). However, the error of mislabeling a CPLR 3212 motion as a CPLR 3211 motion should be disregarded where, as in this case, it did not prejudice the opponent of the motion (see Hertz Corp. v Luken, 126 AD2d 446, 449 [1987]).

Under CPLR 3211(c), converting a motion to dismiss into a motion for summary judgment renders objections that apply only to dismissal motions academic.

Landmark West! v. City of New York · filed 2005-09-01(c)

By an order dated May 16, 2005, the court converted the motion to dismiss into a motion for summary judgment (CPLR 3211 [c]), gave notice to the parties, and set a briefing schedule for additional submissions. Plaintiffs’ procedural objections to defendants’ motion (see opposition mem at 10-15), which apply only to motions to dismiss, are rendered academic in light of the court’s conversion of the motion into a motion for summary judgment.

Section 3211(c) requires notice to the parties before a court considers an affidavit when converting a motion to dismiss into a motion for summary judgment.

Anderson v. Elliott · filed 2005-12-05(c)

Although the Supreme Court erred in considering the affidavit of the Elliott defendants’ real estate agent without giving notice to the parties (see CPLR 3211 [c]; Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]; Sopesis Constr. v Solomon, 199 AD2d 491, 492 [1993]), the Supreme Court had an additional ground for determining that there was no factual basis that the defendants’ activities caused a decrease in the plaintiffs’ property values.

A court may deny a request to treat a motion to dismiss as one for summary judgment under CPLR 3211 (c) when the opposing party has not responded to the merits.

Green v. DeMarco · filed 2005-12-12(c)

The court notes that defendant opposes the District Attorney’s request that the motion be treated as a motion for summary judgment pursuant to CPLR 3211 (c) and has not responded to plaintiffs papers discussing the merits of the action. Under the circumstances, the court denies plaintiff’s request without prejudice and, after issue is joined, the District Attorney may move for summary judgment on the papers already submitted, if he is so inclined.

CPLR 3211(c) permits a motion to dismiss to be converted to a motion for summary judgment with the plaintiff’s consent.

Roger's Fence, Inc. v. Abele Tractor & Equipment Co. · filed 2006-02-03(c)

We note at the outset that, although Hyundai initially moved to dismiss the complaint pursuant to CPLR 3211, and Abele moved “pursuant to CPLR 3211 (a) (1) and (a) (7) and/or CPLR 3212,” the court, upon the consent of plaintiff, thereafter converted their respective motions to ones for summary judgment dismissing the complaint (see CPLR 3211 [c]). Thus, we reject plaintiffs contention on appeal that the court erred in dismissing the complaint against Abele pursuant to CPLR 3211.

Section 3211(c) permits a court to convert a motion to dismiss into a motion for summary judgment when the case can be decided on the merits using documentary evidence.

Bailey v. Fish & Neave · filed 2006-04-13(c)

Finally, we find that the motion court did not err in denying plaintiffs’ motion, pursuant to CPLR 3211 (c), to convert defendants’ dismissal motion to one for summary judgment. The court correctly concluded that this case could be decided on the merits upon the documentary evidence submitted on the motion to dismiss.

Section 3211 permits a preanswer motion to be treated as a motion for summary judgment when the parties lay bare their proof and chart a summary judgment course.

McNamee Construction Corp. v. City of New Rochelle · filed 2006-05-02(c)

The Supreme Court correctly treated the defendants third-party defendants’ (hereinafter the third-party defendants) preanswer motion as a motion for summary judgment. The proof submitted by the third-party defendants on their motion and the proof submitted by the defendant third-party plaintiff (hereinafter the third-party plaintiff) on its cross-motion laid bare their proof and demonstrated that the parties were charting a summary judgment course (see Jamison v Jamison, 18 AD3d 710 [2005]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 321 [1987]).

CPLR 3211(a)(7) requires notice and an opportunity to contest when a court converts a motion into a motion to dismiss for failure to state a cause of action.

Cavallaro v. Pozzi · filed 2006-04-28(a)(7)

We agree with defendant that the court erred in “converting” the motion into a CPLR 3211 motion without affording him notice of the nature of the motion and without affording him the opportunity to contest the conversion of that motion (see 7 W. Foods v Forty-Seventh Fifth Co., 109 AD2d 658 [1985]; cf. Lanzisera v Miller, 289 AD2d 1015, 1016 [2001]; Village of Webster v Monroe County Water Auth., 269 AD2d 781, 782 [2000]).

Section 3211(a)(5) permits dismissal on specified grounds, and a court may apply a summary judgment standard when the parties chart a summary judgment course.

Harris v. Hallberg · filed 2007-01-30(a)(5)

Initially, although the defendants’ motion was made pursuant to CPLR 3211 (a) (5), the parties clearly charted a summary judgment course by submitting extensive documentary evidence and factual affidavits in support of their respective positions (see O’Dette v Guzzardi, 204 AD2d 291 [1994]). Thus, application of a summary judgment standard is appropriate (see O’Dette v Guzzardi, supra).

Section 3211(c) permits a court to convert a motion to dismiss into a summary judgment motion after giving the parties notice and sufficient time to respond.

Manculich v. Dependable Auto Sales & Service, Inc. · filed 2007-04-19(c)

Furthermore, contrary to plaintiffs contention, we find no error in Supreme Court converting defendants’ cross motion to dismiss the complaint to one for summary judgment. The record establishes that the court provided the requisite notice to the parties and afforded them sufficient time to respond (see CPLR 3211 [c]).

Section 3211 permits a motion to dismiss for failure to state a cause of action at any time and allows conversion to summary judgment in appropriate circumstances.

Chuqui v. Church of Saint Margaret Mary · filed 2007-04-24(e), (c)

Defendant’s post-note of issue motion to dismiss for failure to state a cause of action was timely since such a motion can be made at any time (CPLR 3211 [e]), and the CPLR 3212 (a) requirement of demonstrating good cause for the delay is not implicated. Since it was plaintiff himself who requested that the motion be converted into one for summary judgment (CPLR 3211 [c]), he will not be heard to complain that summary judgment treatment was improper.

Section 3211(c) permits conversion of a motion to dismiss into a motion for summary judgment on due notice to all parties.

Monroe County Public School Districts v. Zyra · filed 2007-12-10(c)

By stipulation of the parties, and contrary to the prior order of the court pertaining to the same, the parties ask the court to convert the motion to dismiss into a motion for summary judgment “pursuant to CPLR 3211 (c) on due notice to all parties.” (Stipulation and order, dated Nov. 28-29, 2007, endorsed as an order of the court on Dec. 4, 2007.) That request is granted.

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

South Blossom Ventures, LLC v. Town of Elma · filed 2007-12-21(c)

We note at the outset that the court erred in converting the motion to dismiss to one for summary judgment and dismissing the petition without providing adequate notice to the parties that it intended to do so (see CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506 [1988]).

CPLR 3211(c) permits a court to treat a dismissal motion as one for summary judgment when the parties clearly chart a summary judgment course.

Methal v. City of New York · filed 2008-04-01(c)

In the motion practice which resulted in dismissal of the first complaint against the NYCTA, the parties clearly charted a summary judgment course and the Supreme Court was entitled to treat the NYCTA’s dismissal motion as one for summary judgment (see CPLR 3211 [c]; cf. Bowes v Healy, 40 AD3d 566 [2007]).

CPLR 3211(c) requires notice before a court treats a pre-answer motion as one for summary judgment, but the lack of notice causes no error when the parties chart a summary judgment course by laying bare their proof.

Tendler v. Bais Knesses of New Hempstead, Inc. · filed 2008-06-03(c)

Moreover, although the Supreme Court treated the plaintiffs pre-answer cross motion as one for summary judgment without giving the parties the requisite notice that it was doing so (see CPLR 3211 [c]), no error resulted, since the parties charted a summary judgment course by submitting evidence and factual affirmations laying bare their proof (see Harris v Hallberg, 36 AD3d 857, 858 [2007]; O’Dette v Guzzardi, 204 AD2d 291, 292 [1994]).

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

Stainless Broadcasting Co. v. Clear Channel Broadcasting Licenses, L.P. · filed 2009-01-15(c)

A motion for summary judgment may not be made prior to joinder of issue (see CPLR 3212 [a]) and, although a motion to dismiss pursuant to CPLR 3211 may be converted to a summary judgment motion by the court after giving the parties adequate notice (see CPLR 3211 [c]; Lockheed Martin Corp. v Aatlas Commerce, Inc., 283 AD2d 801, 802 [2001]), the record discloses no such notice by the court.

A motion to dismiss for failure to state a cause of action may be treated as a summary judgment motion without formal notice when the parties have charted a course for summary judgment and the questions are purely legal.

Cook v. Schapiro · filed 2009-01-20(c)

A motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action may be treated as a motion for summary judgment where, as here, the parties have charted a course for summary judgment, and the questions presented are purely legal, even though formal notice to do so has not been given (see New Franklin Nursing Home v Novello, 297 AD2d 720 [2002]; see also Kulier v Harran Transp. Co., 189 AD2d 803 [1993]).

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

Morris v. Schepp · filed 2009-02-06(c)

We note at the outset that the court properly treated the motion as one for summary judgment pursuant to CPLR 3211 (c), and we conclude that defendants failed to meet their initial burden on the motion inasmuch as they failed to establish their entitlement to judgment as a matter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Parties who argue dismissal motions using factual affidavits and extensive documentary evidence may chart a summary judgment course and cannot then object to the court applying that standard.

Hamlet at Willow Creek Development Co. v. Northeast Land Development Corp. · filed 2009-04-21(c)

The short answer to this contention is that by arguing the merits of their respective positions on the basis of factual affidavits and extensive documentary evidence, the parties charted a summary judgment course and cannot be heard to complain that the Supreme Court addressed their motions under the summary judgment standard (see Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d 500, 502 [2008]; Doukas v Doukas, 47 AD3d 753 [2008]; Harris v Hallberg, 36 AD3d 857, 858 [2007]).

CPLR 3211(c) requires notice to the parties before a court converts a motion to dismiss into one for summary judgment, unless a recognized exception applies.

Neurological Services of Queens, P.C. v. Farmingville Family Medical Care, PLLC · filed 2009-06-02(c)

The Supreme Court erred in converting the motion of the defendant Vasiliki Kadianakis, D.O., also known as Kiki Kadianakis, D.O., pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against her into one for summary judgment without providing notice to the parties as set forth in CPLR 3211 (c) (see Rovello v Orofino Realty Co., 40 NY2d 633 [1976]; Bowes v Healy, 40 AD3d 566 [2007]; Moutafis v Osborne, 18 AD3d 723 [2005]). None of the recognized exceptions to the notice requirement is applicable here (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Bowes v Healy, 40 AD3d at 566; Moutafis v Osborne, 18 AD3d at 723; Shabtai v City of New York, 308 AD2d 532, 533 [2003]).

Section 3211(c) requires adequate notice before a court converts a motion to dismiss into one for summary judgment, unless the parties expressly seek summary judgment or deliberately chart that course.

Town of Geneva v. City of Geneva · filed 2009-06-05(c)

We agree with petitioner that the court erred in converting respondents’ motion to dismiss to one for summary judgment. The court did not provide “adequate notice to the parties” that it was doing so (CPLR 3211 [c]), nor did respondents and petitioner otherwise receive “ ‘adequate notice’ by expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were ‘deliberately charting a summary judgment course’ ” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; see Carcone v D’Angelo Ins. Agency, 302 AD2d 963 [2003]; Pitts v City of Buffalo, 298 AD2d 1003, 1004-1005 [2002]).

A CPLR 3211 motion may support dismissal against other defendants when the parties deliberately treat it as a summary judgment motion and recognize that the issue is solely one of law.

Byron v. Haas · filed 2009-07-28(c)

Moreover, the Supreme Court properly held that, under the circumstances of this case, dismissal of the complaint insofar as asserted against Spanakos required dismissal of the complaint as to the remaining defendants, since the parties “deliberately chart[ed] a summary judgment course” and “appreciated that the issue [wa]s exclusively one of law” and the plaintiff opposed the cross motion with affidavits, exhibits, and memoranda of law (Backer v Bouza Falco Co., 28 AD3d 503, 504 [2006]; cf. Bethview Amusement Corp. v Lorber, 35 AD2d 971 [1970]).

A CPLR 3211(a)(5) motion made after issue is joined may be converted to summary judgment when the parties chart that course by submitting evidentiary proof.

Hopper v. McCollum · filed 2009-08-25(a)(5)

The Supreme Court properly, in effect, converted the motion to dismiss to one for summary judgment since it was made after issue had been joined (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595 [2008]; Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Tufail v Hionas, 156 AD2d 670, 671 [1989]), and the parties clearly charted a summary judgment course by laying bare their proof and submitting documentary evidence and evidentiary affidavits (see Myers v BMR Bldg. Inspections, Inc., 29 AD3d 546 [2006]; Jamison v Jamison, 18 AD3d 710, 711 [2005]).

A court must give notice before converting a CPLR 3211 motion to dismiss into a motion for summary judgment.

In re Beane · filed 2009-10-13

The motion court’s findings of fact broadly approving the guardian’s performance were improperly made without notice that the court was converting a prehearing, CPLR 3211 motion to dismiss one of four outstanding objections—namely, Ms. Brotman’s objection that the guardian failed to investigate allegedly unauthorized withdrawals made by Mr. Brotman from the incapacitated person’s brokerage account—to a motion for summary judgment dismissing all four objections (see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]).

CPLR 3211(c) permits a court to treat a dismissal motion as one for summary judgment without adequate notice when summary judgment was specifically requested and the parties deliberately pursued that course.

Burnside 711, LLC v. Nassau Regional Off-Track Betting Corp. · filed 2009-11-10(c)

Initially, although the Supreme Court did not give “adequate notice to the parties” that it was treating the defendant’s motion as one for summary judgment (CPLR 3211 [c]), where, as here, a specific request for summary judgment was made and the parties “ ‘deliberately chart[ed] a summary judgment course’ ” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]), the court was authorized to treat a branch of the defendant’s motion as one for summary judgment (cf. Bowes v Healy, 40 AD3d 566, 567 [2007]).

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment without notice when the motion presents only legal issues fully appreciated and argued by the parties.

F&T Management & Parking Corp. v. Flushing Plumbing Supply Co. · filed 2009-12-15(c)

The Supreme Court properly converted, pursuant to CPLR 3211 (c), that branch of the Lin defendants’ motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the third cause of action asserted against them, which sought a judgment declaring that CYD’s right of first refusal was extinguished, into one for summary judgment declaring that CYD’s right of first refusal was not extinguished. Although the court did not give the parties notice of its intention to convert that branch of the motion, such notice was not required because the cause of action, inasmuch as it rested entirely upon the construction and interpretation of an unambiguous contractual provision (cf. Rahman v Park, 63 AD3d 812, 813-814 [2009]), “exclusively involve[d] issues of law which were fully appreciated and argued by the parties” (Moutafis v Osborne, 18 AD3d 723, 724 [2005]).

CPLR 3211(c) notice is unnecessary when the parties submit the relevant evidence and chart a course for summary judgment.

Frydman v. Fidelity National Title Insurance · filed 2009-12-22(c)

This case contains no factual disputes, and by submitting before the Supreme Court every relevant piece of documentary evidence, along with affidavits of representatives of both parties discussing the application of such evidence, the parties have charted a course for summary judgment.

CPLR 3211(c) calls for treating a pre-answer motion as one for summary judgment when the defendant requests that treatment and both parties deliberately pursue a summary judgment course.

Pistolese v. William Floyd Union Free District · filed 2010-01-19(c)

Although this was a pre-answer motion, under the facts of this case, the Supreme Court should have treated it as one for summary judgment pursuant to CPLR 3211 (c) since the defendant, not only requested such treatment, but both the defendant and the plaintiffs deliberately charted a summary judgment course (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; see generally McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 545 [2006]).

When the parties chart a course for summary judgment and present a purely legal question, CPLR 3211(c) permits the court to decide the motion as one for summary judgment without formal notice.

Sgambelluri v. Ironman · filed 2010-11-16(c)

Where, as here, the parties have charted a course for summary judgment and the question presented is purely legal, it was proper for the Supreme Court to determine that branch of the motion which was for summary judgment dismissing the complaint, even without giving formal notice to the parties pursuant to CPLR 3211 (c) (see Cook v Schapiro, 58 AD3d 664, 665 [2009]; New Franklin Nursing Home v Novello, 297 AD2d 720, 722 [2002]; Kulier v Harran Transp. Co., 189 AD2d 803, 804 [1993]).

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

Saleh v. New York Post · filed 2010-11-30(c)

Insofar as the Supreme Court granted that branch of the defendants’ motion which was to convert the motion to dismiss into one for summary judgment pursuant to CPLR 3211 (c), the Supreme Court erred since it failed to give the parties the statutorily required notice (see CPLR 3211 [c]).

Section 3211 requires notice before a motion to dismiss is converted to a summary judgment motion unless the parties have charted a summary judgment course.

Chiu v. 1-9 Bond Street Realty, Inc. · filed 2010-12-02(c)

The court correctly denied plaintiffs cross motion for summary judgment, since the court did not give notice of an intent to convert defendants’ motion to dismiss pursuant to CPLR 3211 to a motion for summary judgment (CPLR 3212), and we find, contrary to plaintiffs contention, that defendants did not chart a summary judgment course.

CPLR 3211(c) permits a court to convert a dismissal motion to one for summary judgment after notifying both parties and giving them time to supplement their papers.

Riccelli Enterprises, Inc. v. New York State Department of Environmental Conservation · filed 2010-12-14(c)

In an order dated November 16, 2010, this court granted the application of the plaintiff to convert to a summary judgment motion by providing notice to both parties of its intent to do so and giving each time to supplement their papers accordingly.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment, but questions of fact can prevent judgment as a matter of law.

Strack v. Strack · filed 2011-02-03(c)

Having found that Domestic Relations Law § 173 is applicable to Domestic Relations Law § 170 (7), this court now examines the instant motion to dismiss as a motion for summary judgment under CPLR 3211 (c) and finds questions of fact rendering it inappropriate to award judgment to defendant as a matter of law.

Section 3211(c) permits a court to treat a motion as one for summary judgment when both parties submit factual affidavits and affirmations.

Sealy v. Clifton L.L.C. · filed 2011-06-13(c)

Since both Sealy and the administrator have submitted affidavits and affirmations based on the facts to support their respective positions, the court treats Sealy’s motion as one motion for summary judgment. (CPLR 3211 [c].)

A party that characterizes a CPLR 3211 dismissal motion as one for summary judgment waives an objection to treating it as such.

DELZER, LUANNE v. ROZBICKI, JILL M. · filed 2011-06-17(c)

We note at the outset that defendant in fact sought dismissal of the complaint pursuant to CPLR 3211, but plaintiffs in opposition characterized defendant’s motion as one “for summary judgment,” and the court treated it as such. We therefore do the same, inasmuch as plaintiffs have thereby waived any objection to such treatment by their own characterization of the motion (cf. CPLR 3211 [c]).

A court may treat a motion labeled as one for summary judgment as a CPLR 3211 motion to dismiss when the motion papers and the response address only a jurisdictional defect.

Yanus v. State · filed 2011-09-27

The papers supporting the motion, however, do not contest the merits of the claim or assert that there are no triable issues of fact but, rather, assert simply that the court is without jurisdiction to hear the claim due to a defect in the claim. Claimant responds in kind in his responding papers by addressing the alleged defects in the claim and not the underlying merits. As such, the court, sua sponte, now converts the motion to a CPLR 3211 motion to dismiss the claim, and the parties’ respective contentions will be addressed and analyzed within that framework.

A CPLR 3211 motion may be decided under a summary judgment standard when the parties deliberately submit extensive proof charting a summary judgment course.

One Monroe, LLC v. City of New York · filed 2011-11-09

Thus, application of a summary judgment standard is appropriate (see Hopper v McCollum, 65 AD3d at 670; Harris v Hallberg, 36 AD3d at 858).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the proof before it is complete enough for summary judgment.

Selective Insurance Co. of America v. County of Rensselaer · filed 2011-12-12(c)

CPLR 3211 (c) empowers the court to treat defendant’s motion as one for summary judgment if the proof before the court now is as complete as it would be on a summary judgment motion.

CPLR 3211(c) permits a court to treat a motion to dismiss as one for summary judgment without adequate notice when summary judgment was specifically requested and the parties deliberately pursued that course.

Kaplan v. Roberts · filed 2012-01-24(c)

At the outset, although the Supreme Court did not give “adequate notice to the parties” that it would treat the defendant’s motion as one for summary judgment (CPLR 3211 [c]), where, as here, a specific request for summary judgment was made and the parties “ ‘deliberately chart[ed] a summary judgment course’ ” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]), the court was authorized to treat Equinox’s motion as one for summary judgment (see Burnside 711, LLC v Nassau Regional Off-Track Betting Corp., 67 AD3d 718, 720 [2009])..

A court must give adequate notice before treating a CPLR 3211 motion to dismiss as a motion for summary judgment.

Bokara Rug Co. v. Kapoor · filed 2012-03-27

The motion court improperly treated the motion to dismiss pursuant to CPLR 3211 as a motion for summary judgment dismissing the complaint without providing adequate notice to plaintiffs (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]).

CPLR 3211(c) requires adequate notice before a court converts a motion to dismiss into a motion for summary judgment, unless a recognized exception applies.

Barretti v. Detore · filed 2012-05-01(c)

In doing so, the Supreme Court erred, as it did not provide adequate notice to the parties (see CPLR 3211 [c]), and none of the recognized exceptions to the notice requirement was applicable (see CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Velez v Captain Luna’s Mar., 74 AD3d 1191 [2010]; Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care, PLLC, 63 AD3d 703, 704 [2009]).

CPLR 3211(c) does not require notice before a dismissal motion is treated as one for summary judgment when the parties’ submissions show they chose to have the factual issue resolved on that basis.

California Suites, Inc. v. Russo Demolition Inc. · filed 2012-05-31(c)

Under these circumstances, a court is not required to adhere to the notice requirement of CPLR 3211 (c) before treating the motion as one for summary judgment, and plaintiff cannot complain that the notice issue was summarily resolved (see e.g. Ting Kou Cheng v Brewran Vil. Hudson Assoc., 180 AD2d 519, 520 [1992]).

Section 3211(c) requires adequate notice before a court converts a motion to dismiss into one for summary judgment, unless an exception applies.

Jones v. Rochdale Village, Inc. · filed 2012-06-27(c)

Although the Supreme Court was authorized to treat that branch of Zimmerman’s pre-answer motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against it as one for summary judgment upon “adequate notice to the parties” (CPLR 3211 [c]), no such notice was given, and none of the exceptions to the notice requirement is applicable (see Mihlovan v Grozavu, 72 NY2d 506 [1988]; Bowes v Healy, 40 AD3d 566, 566-567 [2007]).

A Section 3211 motion to dismiss can remain a dismissal motion without being converted to a motion for summary judgment.

Curbow Family LLC v. Morgan Stanley Investment Advisors · filed 2012-07-18(c)

At the outset, I note that these motions to dismiss are not converted to, nor considered in the nature of, motions for summary judgment.

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

Brathwaite v. Frankel · filed 2012-08-21(c)

The court erred by treating defendants’ motion made pursuant to CPLR 3211 (a) (7) and (10) as a motion for summary judgment without providing the parties with notice, as required by CPLR 3211 (c) (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]).

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

''John Doe 1'' v. Board of Education of Greenport Union Free School District · filed 2012-11-14(c)

As the plaintiffs correctly observe, summary judgment was unavailable to the school defendants, since the Supreme Court did not provide the requisite “adequate notice” (CPLR 3211 [c]) of its intention to treat the CPLR 3211 (a) (7) motion as one for summary judgment, and it cannot be said on this record that the parties deliberately charted a summary judgment course (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]).

A court converting a motion to dismiss into one for summary judgment must give notice unless the parties lay bare their proof and deliberately pursue summary judgment.

Pilatich v. Town of New Baltimore · filed 2012-11-21(c)

While a court may treat a motion to dismiss as one for summary judgment (see CPLR 3211 [c]; Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010, 1012 [2009]), it must provide notice of its intention to do so unless the parties lay bare their proof and “ ‘deliberately chart[ ] a summary judgment course’ ” (Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829, 830 [1999], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; see Jones v Rochdale Vil., Inc., 96 AD3d 1014, 1016 [2012]; Moore v Ruback’s Grove Campers’ Assn., Inc., 85 AD3d 1220, 1221 [2011]).

Section 3211 permits a court, in appropriate circumstances, to decide a motion converted to summary judgment without first allowing discovery.

Cenzon-Decarlo v. Mount Sinai Hospital · filed 2012-12-19(c)

Moreover, contrary to the plaintiffs contentions, under the circumstances presented here, the Supreme Court did not err in determining the defendants’ converted motion for summary judgment without affording her the benefit of discovery (see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]; Nassau Diagnostic Imaging & Radiation Oncology Assoc. v Winthrop-University Hosp., 197 AD2d 563, 563 [1993]; cf. Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Vecere v Estate of Arnold Berle, 91 AD3d 637, 637-638 [2012]).

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

Sunset Cafe, Inc. v. Mett's Surf & Sports Corp. · filed 2013-02-13(c)

On this record, the Supreme Court erred in converting the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint into one for summary judgment without providing "adequate notice to the parties” (CPLR 3211 [c]).

A CPLR 3211 motion may be converted to one for summary judgment when the parties’ submissions show that they laid bare their proof and deliberately charted a summary judgment course.

Whitby v. Whitby · filed 2013-05-01

The Supreme Court properly converted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 into one for summary judgment dismissing the complaint, as the parties, by their submissions, demonstrated that they were laying bare their proof and deliberately charting a summary judgment course (see Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 258-259 [2012]).

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

Wesolowski v. St. Francis Hospital · filed 2013-07-03(c)

In doing so, the court was required to give “adequate notice to the parties” that the motion was being converted into one for summary judgment (CPLR 3211 [c]; see Rich v Lefkovits, 56 NY2d at 281).

A court may treat a CPLR 3211 motion as one for summary judgment only after giving prior notice or when the parties’ submissions show that they intended that course.

Elhannon, LLC v. Brenda J. DeLuca Trust · filed 2013-07-11

Initially, we agree with plaintiff that Supreme Court erred in treating defendants’ motion as one for summary judgment. ... Here, the record does not demonstrate, and neither party contends, that the court provided notice of its intent to treat defendants’ motion as one for summary judgment and, inasmuch as plaintiff was not afforded discovery in this action, we agree that plaintiff did not evince an intent to have the motion treated as such (see Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829, 830 [1999]).

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

Brown v. Midrox Insurance · filed 2013-07-11(c)

Although not raised before Supreme Court or before this Court on appeal, we note that defendant should have cross-moved for summary judgment rather than cross-moving to dismiss following the service of its answer. We will accordingly treat the motion as one for summary judgment (see CPLR 3211 [c]).

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

Deutsche Bank National Trust Co. v. Kuldip · filed 2013-07-24(c)

On this record, the Supreme Court, in effect, improperly converted Oladopo’s motion pursuant to CPLR 3211 (a) to dismiss the complaint into one for summary judgment without providing “adequate notice to the parties” (CPLR 3211 [c]).

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

People v. Charles Schwab & Co. · filed 2013-08-27(c)

In referring to this history, the court suggested that it was treating the motion as one for summary judgment pursuant to CPLR 3211 (c). Such treatment would not have been permissible as the record does not reflect that the parties were given notice as required by the statute.

CPLR 3211(c) requires adequate notice before a court converts a motion to dismiss into a motion for summary judgment; notice that the court may convert the motion is insufficient.

20 Pine Street Homeowners Ass'n v. 20 Pine Street LLC · filed 2013-09-24(c)

The trial court’s interim order, which notified the parties that the court “may treat all pending motions to dismiss as motions for summary judgment conversion pending consideration of support or opposition by the parties” and invited the parties to submit papers “in support or opposition,” did not provide adequate notice to the parties of the court’s intention to convert the motions pursuant to CPLR 3211 (c).

A court must give notice before converting a CPLR 3211 motion to dismiss into a summary judgment motion unless an exception to the notice requirement applies.

Windsor Owners Corp. v. Mazzocchi · filed 2013-10-15

Mazzocchi’s current claim that the motion court should have, sua sponte, treated defendants’ CPLR 3211 motion to dismiss as one for summary judgment, is unavailing. Defendants never requested that relief below. Even assuming that the parties had requested that the motion be converted to a summary judgment motion, the court gave no notice that it would treat it as such, and the exceptions to the notice requirement are not applicable here (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when no material issue of fact requires trial.

PLUMLEY, MARK D. v. ERIE BOULEVARD HYDROPOWER, L.P. · filed 2014-02-14(c)

We further conclude, however, that the court, in treating defendant’s motion as one for summary judgment pursuant to CPLR 3211 (c), properly granted the motion.

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

Patel v. Primary Construction, LLC · filed 2014-03-19(c)

The Supreme Court erred when it converted the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint into one for summary judgment dismissing the complaint, and thereupon granted the motion. “CPLR 3211 (c) requires that if a court intends to treat a CPLR 3211 motion as one for summary judgment under CPLR 3212, it must give the parties notice of its intention to do so”

Section 3211(c) requires adequate notice to the parties before a court converts a motion to dismiss into one for summary judgment, unless a recognized exception applies.

Vanderbeek v. Beckerle · filed 2014-04-09(c)

The Supreme Court erred when it, in effect, converted that branch of the defendant’s motion which was, in effect, pursuant to CPLR 3211 (a) to dismiss the complaint into one for summary judgment dismissing the complaint. ... We note that the Supreme Court is permitted, upon “adequate notice to the parties,” to treat the subject branch of the defendant’s motion as a motion for summary judgment (CPLR 3211 [c]).

CPLR 3211(c) permits a court to decline to convert a motion to dismiss into a summary judgment motion when the parties have not deliberately charted a summary judgment course.

Lerner v. Prince · filed 2014-05-22(c)

Finally, we find that the IAS court providently exercised its discretion in refusing to convert the dismissal motions into summary judgment motions (see CPLR 3211 [c]), as the record “does not establish that the parties deliberately chart[ed] a summary judgment course” (Wadiak v Pond Mgt., LLC, 101 AD3d 474, 475 [1st Dept 2012] [internal quotation marks omitted]).

Section 3211(c) gives the court discretion to deny an application to convert a motion to dismiss into one for summary judgment.

Paolicelli v. Fieldbridge Associates, LLC · filed 2014-08-20(c)

The Supreme Court did not improvidently exercise its discretion in denying the defendant’s application pursuant to CPLR 3211 (c) to convert the motion to one for summary judgment (see Sokol v Leader, 74 AD3d at 1183; cf. Pistolese v William Floyd Union Free Dist., 69 AD3d 825, 826 [2010]).

A court generally may not decide the merits on a pre-answer motion to dismiss without giving the parties notice that it intends to treat the motion as one for summary judgment.

MatterofThorntonvSaugertiesCentralSchoolDistrict · filed 2014-10-16(c)

While courts may look beyond the petition to decide a pre-answer motion to dismiss on statute of limitations grounds, courts generally may not address the merits without first allowing all respondents to answer, or giving the parties notice of the intention to treat the motion as one for summary judgment (see Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102- 103 [1984]; Matter of Morey v City of Gloversville, 203 AD2d 625, 626 [1994]; see also CPLR 3211 [c]).

Section 3211(c) requires notice to the parties before a court treats a pre-answer motion to dismiss as one for summary judgment and decides the merits.

Thornton v. Saugerties Central School District · filed 2014-10-16(c)

While courts may look beyond the petition to decide a pre-answer motion to dismiss on statute of limitations grounds, courts generally may not address the merits without first allowing all respondents to answer, or giving the parties notice of the intention to treat the motion as one for summary judgment (see Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102-103 [1984]; Matter of Morey v City of Gloversville, 203 AD2d 625, 626 [1994]; see also CPLR 3211 [c]).

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

Rosenblum v. Great Neck Teachers Assn. Benefit Trust Fund · filed 2014-11-05(c)

Contrary to the plaintiffs’ contentions, the Supreme Court is permitted, as it did here, upon “adequate notice to the parties,” to treat the defendant’s motion pursuant to CPLR 3211 (a) as a motion for summary judgment (see CPLR 3211 [c]; Vanderbeek v Beckerle, 116 AD3d 764 [2014]).

A court may decide a CPLR 3211 motion based entirely on statutory interpretation without converting it to a summary judgment motion under subdivision (c).

Surgicare Surgical v. National Interstate Insurance · filed 2014-11-17(c)

With respect to plaintiffs request to convert this motion to one for summary judgment, this court declines to deem defendant’s instant motion as one for summary judgment pursuant to CPLR 3211 (c). Although resolution of a purely legal question is appropriate on a motion for summary judgment (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]), the court may also decide a motion to dismiss pursuant to rule 3211 when it is premised entirely on an issue of statutory interpretation (see McKechnie v Ortiz, 132 AD2d 472 [1st Dept 1987]) or when the sufficiency of the pleadings poses a question of law (see e.g. Rosner v Paley, 65 NY2d 736, 738 [1985]).

A CPLR 3211 motion may be treated as a summary judgment motion when both parties submit proof and deliberately chart a summary judgment course.

FIORE, MICHAEL v. TOWN OF WHITESTOWN · filed 2015-02-13(c)

At the outset, we agree with the parties that defendants’ motion should be considered a motion for summary judgment dismissing the complaint. Although defendants stated in their moving papers that they were seeking dismissal of the complaint pursuant to CPLR 3211, both parties submitted numerous exhibits to the court, including affidavits and transcripts of deposition testimony from several witnesses in the federal lawsuit. Thus, “the respective submissions of both parties demonstrate that they are laying bare their proof and deliberately charting a summary judgment course” (Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 258-259; see Nowacki v Becker, 71 AD3d 1496, 1497).

CPLR 3211(c) does not require conversion notice when a motion expressly seeks summary judgment in the alternative.

Lombardi v. Lombardi · filed 2015-04-22(c)

Contrary to the wife’s contention, the Supreme Court was not required to give notice pursuant to CPLR 3211 (c) that the defendants’ cross motion would be converted into one for summary judgment. The defendants’ notice of cross motion, served after issue was joined, expressly indicated that the motion sought to dismiss the complaint or, alternatively, summary judgment dismissing the complaint. Further, the wife’s opposition papers acknowledged that the defendants were seeking summary judgment. Accordingly, the Supreme Court did not convert the motion to one for summary judgment, and was not required to give notice.

Section 3211(c) requires explicit notice before a court treats a motion to dismiss as one for summary judgment unless an exception applies.

Sandler v. Eric G. Ramsay, Jr. Associates, LLC · filed 2015-06-16(c)

The District Court failed to give “adequate notice to the parties” of its intention to treat defendant’s motion to dismiss as a motion for summary judgment (CPLR 3211 [c]), and none of the exceptions to the requirement that explicit notice be given apply in this case (see generally Mihlovan v Grozavu, 72 NY2d 506 [1988]). Therefore, the District Court improperly treated the motion as one for summary judgment.

Section 3211(c) requires adequate notice before a motion to dismiss is converted into one for summary judgment, unless a recognized exception applies.

JP Morgan Chase Bank, N.A. v. Johnson · filed 2015-06-17(c)

However, the Supreme Court “was required to give ‘adequate notice to the parties’ that the motion was being converted into one for summary judgment” (Wesolowski v St. Francis Hosp., 108 AD3d at 526, quoting CPLR 3211 [c]; see Rich v Lefkovits, 56 NY2d at 281), unless one of the recognized exceptions to the notice requirement was applicable (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Vanderbeek v Beckerle, 116 AD3d 764 [2014]).

CPLR 3211(c) permits conversion of a motion to dismiss to a summary judgment motion without prior notice when the dispute involves only legal issues argued by all parties.

Brown v. Decaudin · filed 2015-06-17(c)

Contrary to the appellant’s contention, the Supreme Court did not improvidently exercise its discretion in converting the respective motion and cross motion to those seeking summary judgment without giving the requisite notice, because, inter alia, the dispute involves only issues of law which were argued by all parties (see F&T Mgt. & Parking Corp. v Flushing Plumbing Supply Co., Inc., 68 AD3d 920 [2009]; Frydman v Fidelity Natl. Tit. Ins. Co., 68 AD3d 622, 623-624 [2009]; Backer v Bouza Falco Co., 28 AD3d 503 [2006]; New York State Higher Educ. Servs. Corp. v Barry, 267 AD2d 567 [1999]).

A CPLR 3211(a) motion may be converted to a summary judgment motion when both parties unequivocally lay bare their proof and deliberately chart a summary judgment course.

Imperium Insurance v. Utica First Insurance · filed 2015-07-01(a)

The Supreme Court properly, in effect, converted the defendant’s motion pursuant to CPLR 3211 (a) to dismiss the complaint into a motion for summary judgment dismissing the complaint, as both parties made it “unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course” (Jamison v Jamison, 18 AD3d 710, 711 [2005] [brackets and internal quotation marks omitted]; see Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 258 [2012]; Four Seasons Hotels v Vinnik, 127 AD2d 310 [1987]).

A motion under CPLR 3211(a)(5) may be treated as a summary judgment motion when the parties chart that course by submitting extensive evidence and affidavits.

Meredith v. Siben & Siben, LLP · filed 2015-07-15(a)(5)

Although the defendant’s motion was made pursuant to CPLR 3211 (a) (5), the parties clearly charted a summary judgment course by submitting extensive documentary evidence and factual affidavits laying bare their proof ... Thus, the defendant’s motion is properly treated as a motion for summary judgment dismissing the complaint as time-barred.

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

Matter of Drug Policy Alliance v. New York City Tax Commn. · filed 2015-09-01(c)

Notwithstanding that the record here is arguably substantial, and respondents’ concession in Supreme Court that their motion would be the same whether viewed as a pre-answer motion to dismiss or one for summary judgment, the parties were not given “adequate notice” that the court would indeed treat the motion as one for summary judgment (CPLR 3211 [c]).

A motion to dismiss under CPLR 3211(a)(8) may be converted to a summary judgment motion on personal jurisdiction when the parties deliberately chart a summary judgment course.

Okeke v. Momah · filed 2015-10-07(a)(8)

The Supreme Court properly, in effect, converted the defendant’s motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint into a motion for summary judgment dismissing the complaint for lack of personal jurisdiction, as the parties submitted “facts and arguments clearly indicating that they were ‘deliberately charting a summary judgment course’ ” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; see Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 258 [2012]).

A motion citing CPLR 3211(a)(3) made after issue is joined may be treated as a summary judgment motion when the parties chart a summary judgment course.

Bank of New York Mellon Ex Rel. Citi Mortgage Loan Trust 2007-1 v. Green · filed 2015-10-14(a)(3)

Initially, since Green’s motion, which recited CPLR 3211 (a) (3) as its basis, was made after issue was joined, and since the parties deliberately charted a summary judgment course, the Supreme Court properly treated Green’s motion as one for summary judgment dismissing the complaint for lack of standing ... .

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

Women's Integrated Network, Inc. v. Anderson Kill P.C. · filed 2015-11-19(c)

The motion court properly declined to treat plaintiff's cross motion pursuant to CPLR 3211(c) as a motion for summary judgment on the ground that the court had not given notice to the parties that it would do so.

Section 3211(c) requires adequate notice before a motion to dismiss is treated as one for summary judgment, except when the motion presents a purely legal question.

Renelique v. State-Wide Ins. Co. · filed 2016-01-20(c)

In these circumstances, the CPLR requires the court to give "adequate notice to the parties" that it will treat defendant's motion to dismiss as one for summary judgment (CPLR 3211 [c]). Here, however, an exception to the notice requirement was applicable, since defendant's motion exclusively involved "a purely legal question rather than any issues of fact" ( Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik , 127 AD2d 310, 320 [1987]).

Under CPLR 3211(c), relying on an attorney’s certification of nonpossession in these circumstances does not improperly convert a motion to dismiss into a summary judgment motion without notice.

Matter of Tarantino v. New York City Police Dept. · filed 2016-02-25(c)

The court’s reliance on the certification in the attorney’s affirmation in this circumstance did not constitute an improper conversion of respondents’ cross motion to one for summary judgment without notice pursuant to CPLR 3211 (c).

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

Women's Integrated Network, Inc. v. Anderson Kill P.C. · filed 2016-03-01(c)

The motion court properly declined to treat plaintiff’s cross motion pursuant to CPLR 3211 (c) as a motion for summary ... judgment on the ground that the court had not given notice to the parties that it would do so.