You are here: / / Supreme Court Should Not Have Treated Pre-Answer Motion to Dismiss as Motion...

Supreme Court Should Not Have Treated Pre-Answer Motion to Dismiss as Motion for Summary Judgment

The Third Department determined Supreme Court erred in treating respondents’ pre-answer motion to dismiss as a motion for summary judgment:

Generally, a summary judgment motion is premature prior to the service of an answer … .  However, a court may treat a pre-answer motion as one for summary judgment if it “give[s] prior notice to the parties or, through their submissions, the parties themselves . . . demonstrate an intent to ‘deliberately chart[] a summary judgment course'” … .  There is no indication in the record before us – nor do the parties assert – that Supreme Court provided any notice of its intention to treat the motion as one for summary judgment. Thus, the question before us distills to whether the parties charted a summary judgment course by laying bare their proof…. .  [P]etitioners clearly did not lay bare all of their proof … .  … Under these circumstances, Supreme Court erred in treating respondents’ motion as one for summary judgment.  Dashmaw v Town of Peru, 516581, 3rd Dept 11-27-13

 

You might also like
Tour Musicians Were Employees of Columbia Artists Management; Workers Who Loaded and Unloaded Equipment Were Not Employees
THE PROCESS SERVER DID NOT TIMELY FILE PROOF OF SERVICE; THEREFORE SERVICE ON DEFENDANT WAS NEVER COMPLETE AND THE DEFAULT JUDGMENT IS A NULLITY; SUPREME COURT CAN CURE THE NONJURISDICTIONAL DEFECT BY ORDERING DEFENDANT TO BE SERVED AND THE DEFENDANT MAY THEN INTERPOSE AN ANSWER (THIRD DEPT).
Payment of Rent Does Not Waive the Tenant’s Right to Recover Rent Paid Based Upon the Landlord’s Breach of the Covenant of Quiet Enjoyment
Suppression Hearing Should Have Been Held to Determine Whether Property Seized by Use of Excessive Force (Taser)
PETITIONER, THE GUARDIAN OF THE PERSON AND PROPERTY OF AN INCAPACITATED PERSON SINCE 2012, WAS ASKED TO RECERTIFY THE GUARDIANSHIP BY A NEW BANK WHICH TOOK OVER THE ACCOUNTS; PETITIONER SOUGHT TO CONTINUE THE TERMS OF THE 2012 ORDER; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, MODIFIED THE TERMS OF THE ORIGINAL ORDER ABSENT A REQUEST FROM A PARTY TO DO SO (THIRD DEPT).
PETITIONER ALLEGED EMPLOYMENT DISCRIMINATION BASED LARGELY ON THE EMPLOYER’S REFUSAL TO ACCOMMODATE PETITIONER’S DISABILITIES BY ALLOWING HER TO WORK REMOTELY FROM HOME; THE EMPLOYER DID NOT PRESENT SUFFICIENT FACTUAL INFORMATION TO WARRANT SUMMARY JUDGMENT; CRITERIA EXPLAINED (THIRD DEPT).
MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS.
FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT.

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Motion to Resettle Not Proper Vehicle for Substantive Change to Order CPLR 3408, Which Requires a Settlement Conference in a Foreclosure Action Involving...