9394 LLC et al. v. Farris, et al.
On March 14, 2003, in 9394 LLC et al. v. Farris, et al., 304 A.D.2d 804 (2nd Dep’t 2003), the Appellate Division of the New York Supreme Court protected the plaintiffs’ critical rights to obtain the notice required by CPLR 3211(c) before a motion to dismiss may be converted to a summary judgment motion. The civil complaint which Kucker Marino Winiarsky & Bittens, LLP filed on plaintiffs’ behalf alleged more than a million dollars in damages caused by defendants’ unlawful utilization of residential premises for business uses. In error the trial court (Lefkowitz, J.) dismissed plaintiffs’ damages claims. KMWB successfully appealed and obtained reversal by the Appellate Division, Second Department. The appellate court agreed with KMWB that the trial court had improvidently converted defendants’ motion to dismiss into a motion for summary judgment without providing the notice required by CPLR 3211(c). The Appellate Division further held that, based on the facts as alleged, the complaint was legally sufficient to withstand a motion to dismiss for alleged failure to state a cause of action, and accordingly the complaint was reinstated. Plaintiffs could proceed with their damages claims and certain requests for injunctive relief.