Neither the Johnsons nor the plaintiff made a specific request for summary judgment, nor did they “indicate that the case involved a purely legal question rather than any issues of fact” (Mihlovan v. Grozavu, 72 N.Y.2d at 508, 534 N.Y.S.2d 656, 531 N.E.2d 288). Further, the parties' evidentiary submissions were not so extensive as to “make it ‘unequivocally clear’ that they were ‘laying bare their proof’ and ‘deliberately charting a summary judgment course’ ” (Wesolowski v. St. Francis Hosp., 108 A.D.3d at 526, 968 N.Y.S.2d 181, quoting Sokol v. Leader, 74 A.D.3d 1180, 1183, 904 N.Y.S.2d 153; see Patel v. Primary Constr., LLC, 115 A.D.3d 834, 982 N.Y.S.2d 340). Accordingly, the Supreme Court erred by, in effect, converting the Johnsons' motion pursuant to CPLR 3211(a)(3) to dismiss the complaint into one for summary judgment, and should not have searched the record and awarded summary judgment to the plaintiff ( see Patel v. Primary Constr., LLC, 115 A.D.3d 834, 982 N.Y.S.2d 340; Moutafis v. Osborne, 18 A.D.3d 723, 795 N.Y.S.2d 716).

Neither party made a specific request for summary judgment, and neither indicated that the case involved a purely legal question rather than any issues of fact (seeJP Morgan Chase Bank, N.A. v. Johnson, 129 A.D.3d 914, 915, 10 N.Y.S.3d 446 ). Moreover, the parties’ submissions were not so extensive as to make it unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course (see id. ; Patel v. Primary Constr., LLC, 115 A.D.3d 834, 834, 982 N.Y.S.2d 340 ). Accordingly, the court should not have considered whether the defendant was entitled to summary judgment dismissing the complaint insofar as asserted against her and declaring that the mortgage was null and void.

We disagree with the Supreme Court's determination to, in effect, convert that branch of the motion of the defendant County of Nassau (hereinafter the defendant) pursuant to CPLR 3211(a)(7) which was to dismiss the complaint insofar as asserted against it into a motion for summary judgment dismissing the complaint insofar as asserted against it, and thereupon grant that branch of the motion. " CPLR 3211(c) requires that if a court intends to treat a CPLR 3211 motion as one for summary judgment under CPLR 3212, it must give the parties notice of its intention to do so" ( Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251, 258, 955 N.Y.S.2d 384 ; seePatel v. Primary Constr., LLC, 115 A.D.3d 834, 982 N.Y.S.2d 340 ; Deutsche Bank Natl. Trust Co. v Kuldip, 108 A.D.3d 686, 687, 968 N.Y.S.2d 882 ; Sunset Café, Inc. v. Mett's Surf & Sports Corp. , 103 A.D.3d 707, 708, 959 N.Y.S.2d 700 ). It is undisputed that no such notice was given by the court.

We nevertheless deem the notice of appeal from that portion of the order to be a motion for leave to appeal and grant such leave (see CCA 1702 [c] ). CPLR 3211 (c) permits a court, in its discretion, to treat a CPLR 3211 (a) motion to dismiss as a motion for summary judgment ‘after adequate notice to the parties.‘ Although the notice requirement may be dispensed with where the parties have made it ‘unequivocally clear that they are laying bare their proof and deliberately charting a summary judgment course‘ ( Four Seasons Hotels v. Vinnik , 127 A.D.2d at 320, 515 N.Y.S.2d 1 ), this exception to the notice requirement is not applicable here because the parties' evidentiary submissions were not so extensive as to indicate that they were laying bare their proof (seePatel v. Primary Constr., LLC , 115 A.D.3d 834, 982 N.Y.S.2d 340 [2014] ). Plaintiffs ‘were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered‘ ( Nonnon v. City of New York , 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 [2007] ).

The Appellate Court found that "the parties' evidentiary submissions were not so extensive as to make it 'unequivocally clear' that they were 'laying bare their proof' and 'deliberately charting a summary judgment course'" (JP Morgan Chase Bank National Association v. Johnson, 129 AD3d 914, 10 NYS3d 446 [2d Dept 2015]; quotingWesolowski v. St. Francis Hosp., 108 AD3d 525, 968 NYS2d 181 [2d Dept 2013]; quoting Sokolv.Leader, 74 AD3d 1180, 1183, 904 NYS2d 153 [2d Dept 2010]; see Patel v. Primary Constr., LLC, 115 AD3d 834, 982 NYS2d 340 [Mem] [2d Dept 2014]). The Order was reversed and the case remanded to the Supreme Court "...so as to provide the Johnsons an opportunity to lay bare their proof in support of the motion, and for a new determination thereafter" (Johnson, supra.).

Following receipt of extensive submissions by the parties laying bare their proof, the court issued an Order, dated March 6, 2015, providing notice pursuant to CPLR 3211(c) that it intended to treat defendant's motion to dismiss pursuant to CPLR 3211(a)(1) (documentary evidence) and CPLR 3211(a)(7) (failure to state a cause of action), and plaintiff's cross-motion to set aside the parties' Separation Agreement, dated July 9, 2012, and Modification Agreement, dated September 8, 2012 as motions for summary judgment pursuant to CPLR 3212. Hendrickson v. Philbor Motors, Inc., 102 AD3d 251 [2d Dept 2012]; see also, Patel v. Primary Construction, LLC, 115 AD3d 834 [2d Dept 2014].

In her reply, plaintiff alleges that defendant's allegations are not truthful. Following receipt of extensive submissions by the parties laying bare their proof, the court issued an Order, dated March 6, 2015, providing notice pursuant to CPLR 3211(c) that it intended to treat defendant's motion to dismiss pursuant to CPLR 3211(a)(1) (documentary evidence) and CPLR 3211(a)(7) (failure to state a cause of action), and plaintiff's cross-motion to set aside the parties' Separation Agreement, dated July 9, 2012, and Modification Agreement, dated September 8, 2012 as motions for summary judgment pursuant to CPLR 3212. Hendrickson v. Philbor Motors, Inc., 102 AD3d 251 [2d Dept 2012] ; see also, Patel v. Primary Construction, LLC, 115 AD3d 834 [2d Dept 2014]. Both parties have availed themselves of the opportunity to file further evidentiary materials.