Bronner v. Butterfield , 767 N.Y.S.2d 882 ( 2003 )

In an action, inter alia, for the partition and sale of personal property, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), entered June 13, 2002, as denied that branch of her motion which was for summary judgment dismissing the complaint pursuant to CPLR 3211 (c).

Ordered that the order is affirmed insofar as appealed from, without costs or disbursement.

The Supreme Court properly declined to treat the defendant’s motion to dismiss as one for summary judgment pursuant to CPLR 3211 (c) (see Four Seasons Hotels v Vinnik, 127 AD2d 310 [1987]; Wiesen v New York Univ., 304 AD2d 459 [2003]). A court’s election to treat a pre-answer motion to dismiss as a motion for summary judgment generally requires adequate notice to the parties (see CPLR 3211 [c]). The defendant’s contention that the rule does not apply in this case because the parties were deliberately charting a course for summary judgment is belied by a confusing record in which the issue of how the plaintiff expected the motion to be treated was at best unclear.

In light of this determination, it is not necessary to reach the parties’ remaining contentions. S. Miller, J.P., Friedmann, Townes and Mastro, JJ., concur.