Rotunno v. Rotunno

In an action to enforce a term of a stipulation entered into by the parties providing for the sale of the former marital residence upon the emancipation of all their children, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), entered January 23, 1991, as granted that branch of the plaintiff’s cross motion which was for summary judgment on his first cause of action.

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

The wife contends that it was improper for the Supreme Court to grant the husband’s motion for summary judgment, since issue had not been joined pursuant to CPLR 3211 (a). We disagree. CPLR 3211 (c) permits a motion pursuant to CPLR 3211 to be treated as one for summary judgment where adequate notice has been given to the parties. In this case, the defendant moved to dismiss under CPLR 3211, and the plaintiff cross-moved for summary judgment dismissing the complaint. Therefore, the defendant cannot claim that she lacked adequate notice that the issue of summary judgment was before the court. We further note that the papers clearly supported granting summary judgment to the plaintiff.

The other claims raised by the defendant are either dehors the record or without merit. Mangano, P. J., Sullivan, O’Brien and Pizzuto, JJ., concur.