3211(c) standard

Soroush v Citimortgage, Inc., 2018 NY Slip Op 03724 [2d Dept. 2018]

CPLR 3211(c) provides that, "[u]pon 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." Here, the Supreme Court should not have converted Citimortgage's motion pursuant to CPLR 3211(a) to dismiss the complaint to one for summary judgment without providing "adequate notice to the parties" (CPLR 3211[c]; see Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d 707Saleh v New York Post, 78 AD3d 1149Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care, 63 AD3d 703Moutafis v Osborne, 18 AD3d 723Steiner v Lazzaro & Gregory, 271 AD2d 596; Glendora v Kofalt, 224 AD2d 485; Pearsal Props. Corp. v Arzina Realty Corp., 139 AD2d 638; Camarda v Vanderbilt, 100 AD2d 836). None of the recognized exceptions to the notice requirement is applicable here. No specific request for summary judgment was made by any party, the parties did not deliberately chart a summary judgment course, and the action did not exclusively involve issues of law which were fully appreciated and argued by the parties (see Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d at 708; Moutafis v Osborne, 18 AD3d at 724). Moreover, since Citimortgage's motion to dismiss the complaint should not have been converted to one for summary judgment, the court also should not have searched the record and awarded summary judgment to the plaintiff (see Moutafis v Osborne, 18 AD3d at 724).

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