CPLR 3211(a)(5) motion converted to CPLR 3212 motionFebruary 3, 2016

Renelique v State-Wide Ins. Co., 2016 NY Slip Op 50095(U)(App. Term 2d Dept. 2015)

This is interesting for a myriad of reasons.  It is the first time I have seen this Appellate Term convert a post joinder motion to dismiss into a summary judgment motion; and the conversion was made without applicable notice to the other party.  Procedurally, what I find interesting here is that assuming the 3211(a)(5) motion was made more than 120-days after Notice of Trial was filed, this could turn into a motion for summary judgment that violates 3212(a).  It is quite nuanced.

Here is the case:

“At the outset, we note that although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), it was made after issue was joined (see generally CPLR 3211 [e]). In these circumstances, the CPLR requires the court to give “adequate notice to the parties” that it will treat defendant’s motion to dismiss as one for summary judgment (CPLR 3211 [c]). Here, however, an exception to the notice requirement was applicable, since defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]). Consequently, it was proper for the Civil Court to, in effect, treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320.)”

[res judicata prevails and case dismissed]

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