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HERNANDEZ v. 2075-2081 WALLACE AVENUE OWNERS CORP.

10037, 301466/11.

176 A.D.3d 467 (2019)

107 N.Y.S.3d 864

2019 NY Slip Op 07328

Hiram Hernandez et al., Respondents, v. 2075-2081 Wallace Avenue Owners Corp., Defendant/Third-Party Defendant, and Metro Management and Development, Corp., Appellant/Third-Party Plaintiff-Appellant.

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

Decided October 10, 2019.

Attorney(s) appearing for the Case

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains ( Joseph A.H. McGovern of counsel), for appellant.

The Rosato Firm PC, New York ( Paul A. Marber of counsel), for respondents.

Concur—Manzanet-Daniels, J.P., Kern, Oing, Singh, JJ.

The motion court providently exercised its discretion in treating defendant's motion to dismiss pursuant to CPLR 3211(a)(2) and (7) as a motion for summary judgment (CPLR 3211[c]), since both sides made it unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course (see Four Seasons Hotels v Vinnik, 127 A.D.2d 310, 320-321 [1st Dept 1987]).

The court correctly denied the...

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