Mareno v. Kibbe

• Citation: 32 A.D.2d 825,302 N.Y.S.2d 324
• Parties: Antonio MARENO et al., etc., Appellants, v. John R. KIBBE, Supervisor, et al., Councilmen, individually and constituting the Town Board of the Town of Yorktown, et al., Respondents, et al., Defendants.
• Decision Date: 23 June 1969
• Court: New York Supreme Court Appellate Division

Page 324

302 N.Y.S.2d 324

32 A.D.2d 825

Antonio MARENO et al., etc., Appellants, v. John R. KIBBE, Supervisor, et al., Councilmen, individually and constituting the Town Board of the Town of Yorktown, et al., Respondents, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

June 23, 1969.

Antonio Mareno, Yorktown Heights, for appellants.

Raymond J. Margles, Yorktown Heights, for defendants-respondents.

Before HOPKINS, Acting P.J., and BENJAMIN, MUNDER, MARTUSCELLO and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In an action Inter alia to declare the nullity of certain orders with respect to the Yorktown Heights Sewer District, for an injunction and to recover money damages, in which plaintiffs made a motion to dismiss respondents' affirmative defenses and for partial summary judgment, the appeal is from an order of the Supreme Court, Westchester County, dated April 3, 1968, which Inter alia (1) treated plaintiffs' motion insofar as it was directed to such defenses as were pleaded as a second defense to the first cause of action and a defense to the second and third causes of action, as a motion for summary judgment and (2) granted summary judgment to respondents.

Order modified, on the law, by deleting the fourth, fifth, sixth, and seventh decretal paragraphs thereof and adding a decretal paragraph thereto granting plaintiffs' motion to the extent of dismissing the first affirmative defense to the first cause of action. As so modified, order affirmed, with $10 costs and disbursements to appellants. No questions of fact have been considered.

In our opinion, Special Term should not on its own motion have treated plaintiffs' motion as a motion for summary judgment as above described (CPLR 3211, subd. (c)). No request for summary judgment was made on behalf of respondents in the affidavit submitted in opposition to plaintiffs' motion; and, though occasions will arise when summary judgment may properly be granted when motions to dismiss pleadings have been initially served (cf. 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3211.50), we think that the parties should be apprised of the court's intention so to treat the pending motions before it prior to decision, so that an appropriate record and submission of the facts and law may be made by the parties. It is not apparent on this record that the parties were informed prior to decision of the court's determination to treat the pending motion as one for summary judgment.

In any...