Opinion
June 22, 1989
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
The IAS court, in its decision declaring the rights of the parties, in effect granted summary judgment without having a motion for such relief before it. Neither of the parties requested that defendants' cross motion for dismissal be treated as one for summary judgment pursuant to CPLR 3211 (c) and the court could not properly treat it as such, sua sponte, without giving "adequate notice" (CPLR 3211 [c]). "Neither party had otherwise received 'adequate notice' by expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were 'deliberately charting a summary judgment course' * * *. Nor did the parties indicate that the case involved a purely legal question rather than any issues of fact * * *. Consequently, the court's sua sponte treatment of the motion as one for summary judgment deprived plaintiff of the 'opportunity to make an appropriate record' and thus thwarted the very purpose of CPLR 3211 (c)". (Mihlovan v. Grozavu, 72 N.Y.2d 506, 508.)
Concur — Murphy, P.J., Asch, Rosenberger, Wallach and Smith, JJ.