CPLR R. 3211 motion to dismiss not properly converted to 3212 Motion

On December 29, 2006, defendant removed its broadcasting equipment
and vacated the premises. Thereafter, plaintiff made a written demand
for defendant to remit $299,700, a sum which plaintiff claimed
represented rent payments for the balance of the five-year 2006 lease
term. Upon defendant's refusal, plaintiff commenced this action on the
theories of breach of contract, breach of implied duty of good faith
and fair dealing, unjust enrichment, quantum meruit and fraud.
Plaintiff also sought a declaration that the 2006 lease was in full
force and effect. In lieu of an answer, defendant moved for dismissal
of the complaint and summary judgment pursuant to CPLR 3211 and/or
3212. In an order without a supporting decision, Supreme Court granted
defendant's motion and dismissed the complaint, prompting this appeal.

Initially, we note that Supreme Court's order fails to specify
the ground upon which it granted defendant's motion. In the event that
the court treated defendant's motion as one for summary judgment, we
find this to be error. 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. While "the notice requirement may be obviated in cases where it
can be found that the parties 'deliberately chart[ed] a summary
judgment course'" (Henbest & Morrisey v W. H. Ins. Agency, 259 AD2d 829, 829-830 [1999], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]), the record before us does not support such a finding. Although
plaintiff made some effort to controvert the evidenc epresented in
support of defendant's motion, we cannot conclude that it clearly
intended to chart a summary judgment course (see Wadsworth v Beaudet, 267 AD2d 727, 730 [1999]). As
a result, we proceed to determine defendant's motion to dismiss and, in
doing so, we "must afford the pleadings a liberal construction, take
the allegations of the complaint as true and provide plaintiff the
benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Team Mktg. USA Corp. v Power Pact, LLC, 41 AD3d 939, 940 [2007]).