Adams v. O'Connor

245 A.D.2d 537, 666 N.Y.S.2d 497, 1997 N.Y. App. Div. LEXIS 13360

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1997
• Status: Published

Opinion

—In an action, inter alia, to recover damages for fraud in connection with a contract for the sale of real estate, the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (DiNoto, J.), entered December 5, 1996, which, upon an order of the same court dated October 11, 1996, granting the defendants’ motion to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiffs’ contention that the Supreme Court improperly considered evidentiary material on the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) is improperly raised for the first time on appeal. In any event, it is without merit (see, Rovello v Orofino Realty Co., 40 NY2d 633, 636). The court did not notify the parties that it was treating the motion as one for summary judgment, nor is there any indication that this occurred, or that the parties deliberately charted a summary judgment course (see, Williams v New York City Hous. Auth., 238 AD2d 413; cf., 51 St. Nicholas Realty Corp. v City of New York, 218 AD2d 343). Furthermore, the Supreme Court properly considered the evidentiary submissions to assess the viability of the complaint, and inasmuch as the defendants’ evidence demonstrated that a material fact alleged by the plaintiffs to be true “[was] not a fact at all” and that “no significant dispute exist [ed] regarding it”, the complaint was properly dismissed (Guggenheimer v Ginzburg, 43 NY2d 268, 275; see also, Rovello v Orofino Realty Co., supra).

The plaintiff’s remaining contentions are either improperly raised for the first time on appeal or without merit. Miller, J. P., Sullivan, Santucci and Lemer, JJ., concur.