The petitioners' motion to dismiss the objections of the guardian ad litem was properly denied. Special Term had before it a motion pursuant to CPLR 404 (subd. [b]), 3211 (subd. [a], par. 7) and 3211 (subd. [b]), limitedly designed to test the sufficiency of the pleadings. If the court chose to treat the submission as a motion for summary judgment, on an issue of such large consequences, the court should have given the petitioner an opportunity to submit affidavits in response...
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