Opinion
March 31, 1994
Appeal from the Supreme Court, Suffolk County (Robert Doyle, J.).
The IAS Court did not improperly treat the motion as one for summary judgment in violation of the notice requirement of CPLR 3211 motion that the court converted to a summary judgment motion, but was, ab initio, a motion for summary judgment as well. CPLR 3212 is cited five times in defendants' notice of motion, and plaintiffs' counsel acknowledged four times in his opposition papers that this was a motion for dismissal of the complaint and for summary judgment. With respect to that prong of defendants' motion seeking summary judgment, plaintiffs were obliged to oppose with evidence countering the facts shown by defendants' documentary evidence. Even if plaintiffs' largely conclusory pleadings were minimally enough to survive a CPLR 3211 motion, the factual averments in the complaint, verified only by counsel, lacked probative value and were not enough to defeat the motion for summary judgment (see, e.g., Offset Paperback Mfrs. v Banner Press, 47 A.D.2d 733, affd 39 N.Y.2d 770). We modify only to declare the rights of the parties implicit in the IAS Court's dismissal of the fourth cause of action (see, Lanza v. Wagner, 11 N.Y.2d 317, 334). We have considered plaintiffs' remaining arguments and find them to be without merit.
Concur — Carro, J.P., Rosenberger, Ross, Asch and Tom, JJ.