CPLR R. 3211 Motion to dismiss
(c)
Evidence permitted; immediate trial; motion treated as one for summary
judgment. Upon the hearing of a motion made under subdivision (a) or
(b), either party may submit any evidence that could properly be
considered on a motion for summary judgment. Whether or not issue has
been joined, the court, after adequate notice to the parties, may treat
the motion as a motion for summary judgment. The court may, when
appropriate for the expeditious disposition of the controversy, order
immediate trial of the issues raised on the motion.
CPLR R. 3212 Motion for summary judgment
Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care, PLLC, 2009 NY Slip Op 04400 (App. Div., 2nd, 2009)
The Supreme Court erred in converting the motion of the defendant
Vasiliki Kadianakis, D.O., a/k/a 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; Bowes v Healy, 40 AD3d 566; Moutafis v Osborne, 18 AD3d 723). None of the recognized exceptions to the notice requirement is applicable here (see Mihlovan v Grozavu, 72 NY2d 506, 508; Bowes v Healy, 40 AD3d at 566; Moutafis v Osborne, 18 AD3d at 723; Shabtai v City of New York, 308 AD2d 532, 533). Thus, this Court will apply the standards applicable to a motion to dismiss pursuant to CPLR 3211.
[*2]Accepting the facts as alleged
in the complaint as true, and according the plaintiff the benefit of
every possible favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint fails to state a cause of action against the defendant Kadianakis (see
CPLR 3211[a][7]). The complaint fails to set forth any allegations
which, if true, would justify piercing the corporate veil and holding
Kadianakis personally liable in her individual capacity (see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141; Millennium Constr., LLC v Loupolover, 44 AD3d 1016, 1016; Matter of Goldman v Chapman, 44 AD3d 938, 939; Levin v Isayeu, 27 AD3d 425; Hyland Meat Co. v Tsagarakis, 202 AD2d 552, 552; cf. Pellarin v Moon Bay Dev. Corp., 29 AD3d 553).
Matter of Town of Geneva v City of Geneva, 2009 NY Slip Op 04483(App. Div., 4th, 2009)
Although respondents/defendants (respondents) moved to dismiss this
hybrid CPLR article 78 proceeding and plenary action against them under
various paragraphs of CPLR 3211 (a) and under CPLR 7804 (f), Supreme
Court in its decision nevertheless addressed the burdens of
petitioner/plaintiff (petitioner) and granted respondents' motion to
dismiss based on the evidence submitted by respondents in support of
their motion. 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; see Carcone v D'Angelo Ins. Agency, 302 AD2d 963; Pitts v City of Buffalo, 298 AD2d 1003, 1004-
1005).
The bold is mine.
bruteforcelawyer.com 