Initially, we reject plaintiff's claim that Special Term erred in granting summary judgment without giving the parties notice pursuant to CPLR 3211 (subd [c]). The motion seeking dismissal of the complaint was made after defendant had answered and plaintiff had replied to the answer. The motion papers did not specify whether the motion was pursuant to CPLR 3211 or 3212. The parties, however, treated the motion as one for summary judgment, submitting affidavits and documents...
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