CPLR R. 3211(a)(5) Converted to CPLR R. 3212

CPLR R. 3211(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

CPLR R. 3212 Motion for summary judgment

Hopper v McCollum, 2009 NY Slip Op 06315 (App. Div., 2nd, 2009)

[T]he defendant interposed a verified answer. In June 2008 the
defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on
the ground that the plaintiffs had received payment through their
homeowners' insurance policy and were not entitled to any additional
recovery from her. The Supreme Court, in effect, converted the motion
to dismiss into one for summary judgment dismissing the complaint and
granted the motion. We modify.

The Supreme Court properly, in effect, converted the motion to
dismiss to one for summary judgment since it was made after issue had
been joined (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Schultz v Estate of Sloan, 20 AD3d 520; Tufail v Hionas, 156
AD2d 670, 671), and the parties clearly charted a summary judgment
course by laying bare their proof and submitting documentary evidence
and evidentiary affidavits (see Myers v BMR Bldg. Inspections, Inc., 29 AD3d 546; Jamison v Jamison, 18 AD3d 710, 711). However, upon such conversion, the Supreme Court [*2]erred
in granting the defendant's converted motion for summary judgment
dismissing the complaint. Contrary to the defendant's contention, the
plaintiffs are not precluded from maintaining this action against the
defendant simply because they received payment from their insurance
carrier (see generally Fisher v Qualico Contr. Corp., 98 NY2d 534, 538; Spectra Audio Research, Inc. v Chon, 62 AD3d 561; Corsa v Pacific Indem. Co., 52 AD3d 450, 451; Winkelmann v Hockins, 204
AD2d 623, 623-624). If the trier of facts in this matter finds the
defendant liable and awards damages to the plaintiffs, then the
plaintiffs' receipt of the insurance payment may be relevant as a
possible setoff against the damages award (see CPLR 4545[c]; Fisher v Qualico Contr. Corp., 98 NY2d at 539-540).

While the Court notes that because issue was joined–among other things–conversion was appropriate, that is not always the case.  Consider Roche v Claverack Coop. Ins. Co., 2009 NY Slip Op 01390 (App. Div., 3d, 2009).  There the Third Department allowed for a pre-answer summary judgment motion because the parties charted their course and it "treated defendants' summary
judgment motion as if issue had indeed been joined."
(I took out the internal quotes).

Lately I've seen a lot of 3211 motions under subdivisions that are inapplicable.  More often than not, they are 3212 motions being masked behind 3211.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s