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VELEZ v. MARINA

2008-06860.

74 A.D.3d 1191 (2010)

904 N.Y.S.2d 474

JULIO A. VELEZ, Plaintiff, v. CAPTAIN LUNA'S MARINA et al., Appellants, and VIVA EMPANADA et al, Respondents, et al., Defendants.

Appellate Division of the Supreme Court of New York, Second Department.

Decided June 22, 2010.

Ordered that the order is affirmed, with one bill of costs.

Although the defendants Captain Luna's Marina and John Luna (hereinafter together the appellants) moved pursuant to CPLR 3211, the Supreme Court, in effect, converted the motion into one for summary judgment pursuant to CPLR 3212 without providing adequate notice pursuant to CPLR 3211 (c). This was error (see Mihlovan v Grozavu, 72 N.Y.2d 506, 508 [1988];

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