Carcone v. D'Angelo Insurance Agency , 755 N.Y.S.2d 173 ( 2003 )

Appeal from an order of Supreme Court, Herkimer County (Kirk, J.), entered March 14, 2002, which granted the motion of defendant American States Insurance Company for summary judgment dismissing the complaint against it.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint against defendant American States Insurance Company is reinstated.

Memorandum: Although American States Insurance Company (defendant) moved to dismiss the complaint against it under CPLR 3211 (a) (1) and (7), Supreme Court issued a written decision specifying that it was granting the motion “for summary judgment” and discussing the absence of issues of fact. The order dismissed the complaint on the merits with prejudice. Where there is a conflict between an order and a decision, the decision controls (see Matter of Edward V., 204 AD2d 1060). We agree with plaintiffs that the court improperly converted the motion to dismiss to a CPLR 3212 motion for summary judgment. Although a court may convert such a motion pursuant to CPLR 3211 (c), the court must give the parties notice of its intent to do so (see id.; see e.g. Mihlovan v Grozavu, 72 NY2d 506, 508; Pitts v City of Buffalo, 298 AD2d 1003; Village of Webster v Monroe County Water Auth., 269 AD2d 781, 782). In the absence of such notice, the court may convert a motion to dismiss to one for summary judgment only if the parties “expressly [sought] summary judgment or [submitted] facts and arguments clearly indicating that they were ‘deliberately charting a summary judgment course’ ” (Mihlovan, 72 NY2d at 508, quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320; see Village of Webster, 269 AD2d at 782). Here, there is ho indication that the court provided the requisite notice or that the parties expressly sought summary judgment or deliberately charted a summary judgment course. We therefore reverse the order, deny the motion and reinstate the complaint against defendant. Present — Pine, J.P., Hurl-butt, Kehoe, Burns and Hayes, JJ.