Court Erred in Converting Motion to Dismiss into Motion for Summary Judgment

On November 28, 2017, the First Department issued a decision in Island Intellectual Prop. LLC v. Reich & Tang Deposit Solutions, LLC, 2017 NY Slip Op. 08311, holding that the motion court erred in converting a motion to dismiss into a motion for summary judgment, explaining:

The motion court should not have entertained plaintiffs' cross motion for summary judgment, as the parties did not chart a course for summary judgment. Defendants objected to the court entertaining the motion as one for summary judgment and the court did not provide adequate notice of its intention to convert the motions pursuant to CPLR 3211(c).

(Internal citations omitted).

Cases in the Commercial Division of the New York courts more often that not involve a motion to dismiss at the outset, so this is a big part of our practice. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about seeking or opposing dismissal of a commercial lawsuit.