Opinion
April 22, 1985
Appeal from the Supreme Court, Westchester County (Leggett, J., Dickinson, J.).
Appeal from orders dismissed ( see, Matter of Aho, 39 N.Y.2d 241, 248).
Judgment affirmed.
Plaintiffs are awarded one bill of costs.
No procedural error occurred in treating the aforenoted branch of plaintiffs' cross motion as one for summary judgment. Plaintiffs' notice of cross motion clearly indicated that they were seeking summary judgment pursuant to CPLR 3211 (c) and defendants submitted answering affidavits. In such circumstances, Special Term was not required to notify defendants before ruling on the cross motion ( see, O'Hara v. Del Bello, 47 N.Y.2d 363, 367-368; Pollnow v. Poughkeepsie Newspapers, 107 A.D.2d 10, 16, n 4; Goldstein v. County of Monroe, 77 A.D.2d 232, 234; Monteferrante v. New York City Fire Dept., 63 A.D.2d 576, affd 47 N.Y.2d 737 on mem at App. Div.). Moreover, defendants sought and were granted reargument which gave them another opportunity to place evidentiary matter before the court ( cf. Schnur v. Mehl, 75 A.D.2d 890, 891; Franklin v. Pee Dee Jay Amusement Co., 71 A.D.2d 866, 868).
We perceive no reason to overturn the determination on the merits. The action concerns a claim for additional rents due under a lease which provided for rental increases based on the consumer price index. Although current regulations of the New York State Department of Health preclude the inclusion of such clauses in leases governing nursing homes ( 10 NYCRR 600.2 [e]), that provision did not become effective until December 21, 1978, long after the lease in issue was executed. The regulations could not, of course, have retroactive effect ( see, Char-Mo Investors v. Market Ins. Co., 44 N.Y.2d 793; Health Ins. Assn. v. Harnett, 44 N.Y.2d 302, 313; cf. Matter of Freeport Randall Co. v. Herman, 56 N.Y.2d 832, 834). Mollen, P.J., Titone, Thompson and Lawrence, JJ., concur.