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Current Developments in the Commercial Divisions of the
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Posted: September 28, 2014

Post-Answer Motion to Dismiss Converted to Motion for Summary Judgment

On September 18, 2014, Justice Emerson of the Suffolk County Commercial Division issued a decision in Sriram v GCC Enterprises, Inc., 2014 NY Slip Op. 32448(U), converting a motion to dismiss based on documentary evidence to one for summary judgment.

In Sriram, the defendant moved to dismiss the complaint. The trial court converted the motion to one for summary judgment (which it denied), explaining:

The defendant cross moves to dismiss the complaint pursuant to CPLR 3211(a)(1). A motion to dismiss a cause of action under CPLR 3211(a)(1) must be made before service of the responsive pleading, i.e., before answering. A motion for summary judgment, on the other hand, does not lie until after service of the responsive pleading. Summary judgment is, therefore, a post-answer device. Any of the grounds on which a CPLR 3211 motion could have been made before service of the answer can be used as a basis for a motion for summary judgment afterwards as long as the particular objection, although not taken by CPLR 3211 motion before service of the answer, has been included as a defense in the answer and thereby preserved. The defendant has answered the complaint and raised the issues that it now raises as an affirmative defense. Thus, although the cross motion is denominated as a motion to dismiss pursuant to CPLR 3211(a)(1), it is, in effect, a motion for summary judgment on that ground.

CPLR 3211 (c) empowers the court to treat a motion to dismiss as a motion for summary judgment after adequate notice to the parties when the proof submitted to the court is as complete as it usually is on a motion for summary judgment pursuant to CPLR 3212. Notice is not required if the parties have revealed their proof and clearly charted a summary judgment course. The court finds that the parties have charted a summary judgment course. Accordingly, the court will treat the cross motion as one for summary judgment without any further notice to the parties.

(Internal quotations and citations omitted).

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