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Although It Was Proper to Consider the Motion to Dismiss Made After Issue Was Joined a Motion for Summary Judgment, Supreme Court Should Not Have Determined the Motion Without Giving Notice to the Parties So the Parties Could Lay Bare Their Proof

The Second Department determined Supreme Court should not have converted the motion to dismiss to a motion for summary judgment without notice to the parties.  Because the motion to dismiss was made after issue was joined, it should be treated as a motion for summary judgment. However, because none of the exceptions to the notice requirement applied, Supreme Court should not have determined the motion without giving the parties the opportunity to submit additional evidence.  The matter was remitted for that purpose:

Since the [defendants’] motion was made after issue was joined, the Supreme Court correctly determined that it should be treated as a motion for summary judgment pursuant to CPLR 3212 … . However, the Supreme Court “was required to give adequate notice to the parties’ that the motion was being converted into one for summary judgment” …, unless one of the recognized exceptions to the notice requirement was applicable … . Here, no such notice was given, and none of the recognized exceptions to the notice requirement is applicable … . Neither the [defendants] nor the plaintiff made a specific request for summary judgment, nor did they “indicate that the case involved a purely legal question rather than any issues of fact” … . Further, the parties’ evidentiary submissions were not so extensive as to “make it unequivocally clear’ that they were laying bare their proof’ and deliberately charting a summary judgment course'” … . Accordingly, the Supreme Court erred by, in effect, converting the [defendants’] motion pursuant to CPLR 3211(a)(3) to dismiss the complaint into one for summary judgment, and should not have searched the record and awarded summary judgment to the plaintiff … . JP Morgan Chase Bank, N.A. v Johnson, 2015 NY Slip Op 05159, 2nd Dept 6-17-15

 

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