You are here: / / TO CONSIDER A LATE MOTION TO DISMISS, THE PARTIES MUST FIRST BE PUT ON...
,

TO CONSIDER A LATE MOTION TO DISMISS, THE PARTIES MUST FIRST BE PUT ON NOTICE THE MOTION WILL BE TREATED AS A SUMMARY JUDGMENT MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the post answer motion to dismiss should not have been heard because there was no notice the motion would be treated as a summary judgment:

By summons and complaint dated July 8, 2021, plaintiff commenced this action against defendant to recover approximately $360,000 in unpaid counsel fees. Defendant answered on or about August 18, 2021 and asserted the statute of limitations as an affirmative defense. On September 1, 2022, defendant moved under CPLR 3211(a)(5) to dismiss the complaint as barred by the statute of limitations. Defendant’s post-answer motion to dismiss was not timely (CPLR 3211 [e] …). Thus, the motion could not be properly considered unless the parties were given adequate prior notice that the motion would be treated as a motion for summary judgment under CPLR 3212 or unless an exception to the notice requirement applied (see CPLR 3211[c] … ). Because defendant does not argue that adequate notice was given or that an exception to the notice requirement applied, we reverse and remand for consideration after the parties are given the requisite notice …   Smith, Gambrell & Russell, LLP v 3 W. 16th St., LLC, 2023 NY Slip Op 04952, First Dept 10-3-23

Practice Point: A late (post answer) motion to dismiss should not be considered unless the parties have been notified the motion will be treated as a summary judgment motion, or unless some exception to the notice requirement applies.

 

You might also like
NO NEED TO SHOW LADDER WAS DEFECTIVE; ENOUGH TO SHOW PLAINTIFF WAS NOT PROVIDED WITH ANY EQUIPMENT TO ENSURE THE LADDER REMAINED UPRIGHT (FIRST DEPT).
PLAINTIFF’S BREACH-OF-AN-EMPLOYMENT-CONTRACT ACTION SHOULD NOT HAVE BEEN DISMISSED, DESPITE THE FACT THAT DEFENDANT NEVER SIGNED IT (FIRST DEPT).
ALTHOUGH THE DEFENDANT’S ATTORNEY AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF THE ATTACHED DOCUMENTS, THE DOCUMENTS SHOULD NOT HAVE BEEN DEEMED INADMISSIBLE BECAUSE THE PLAINTIFF DID NOT OBJECT TO THEM AND RELIED ON THEM IN OPPOSITION TO DEFENDANT’S MOTION (FIRST DEPT).
PLAINTIFF HAD TO USE AN A-FRAME LADDER ON TOP OF A SCAFFOLD TO REACH THE WORK AREA; THE SCAFFOLD MOVED AND PLAINTIFF FELL TO THE GROUND; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION AND DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION (FIRST DEPT).
The Fact that One of Four Men Approached for a Level One Street Inquiry Ran Did Not Provide the Police with Reasonable Suspicion that Defendant, Who Obeyed the Police Commands, Was Involved in a Crime
THE NATIONAL VACCINE INJURY COMPENSATION PROGRAM (PART 2 OF THE NATIONAL CHILDHOOD VACCINE INJURY ACT OF 1986), WHICH LIMITS THE LIABILITY OF A PHYSICIAN WHO ADMINISTERS A VACCINE TO $1000, DOES NOT APPLY TO PHYSICIANS WHO SUBSEQUENTLY TREAT A VACCINATED PERSON FOR A VACCINE-RELATED CONDITION (FIRST DEPT).
DEED MADE UNDER FALSE PRETENSES IS VOID AB INITIO RENDERING THE RELATED MORTGAGE INVALID; THE LAW OF THE CASE DOCTRINE DOES NOT PRECLUDE RECONSIDERING A MATTER WHERE THERE IS NEW EVIDENCE (FIRST DEPT).
Question of Fact Whether Elevator Company Had Constructive Notice of “Misleveling Condition”/Question of Fact About Applicability of Res Ipsa Loquitur Doctrine

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A CONFLICT BETWEEN TWO PROVISIONS OF THE POSTNUPTIAL AGREEMENT REQUIRED A TRIAL... QUESTIONS OF FACT ABOUT WHO HAD THE GREEN LIGHT AND WHETHER DEFENDANT DRIVER...