Order unanimously reversed on the law without costs and motion granted.
Memorandum:
Special Term incorrectly treated defendants' motion to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]) as one for summary judgment (CPLR 3212). While CPLR 3211 (c) permits the court to treat a motion to dismiss as one for summary judgment, it may only do so by first giving adequate notice to the parties. Absent such notice, there can be no such...
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