Morrison v. City of Buffalo Board of Education

199 A.D.2d 1074, 605 N.Y.S.2d 605, 1993 N.Y. App. Div. LEXIS 12759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1993
• Status: Published

Opinion

Judgment unanimously reversed on the law with costs and motion denied with leave to respondent to answer the petition within 20 days of service of a copy of the order of this Court with notice of entry. Memorandum: Supreme Court improperly converted respondent’s motion to dismiss the petition (CPLR 7804 [f]) into a motion for summary judgment (CPLR 3211 [c]) and granted summary judgment to petitioner. The motion to dismiss raised a question of fact whether respondent violated its policy in failing to hire petitioner. Summary judgment, therefore, was not appropriate (see, Matter of Cutcher v Nyquist, 39 AD2d 810). Additionally, petitioner’s opposing papers consist of an attorney’s affidavit with copies of the minutes of two of respondent’s meetings. Those minutes are not evidence in admissible form and thus, even if respondent had had notice that the court was converting the motion to dismiss into a motion for summary judgment, the evidence was insufficient to support summary judgment for petitioner. (Appeal from Judgment of Supreme Court, Erie County, Gorski, J.—Article 78.) Present—Denman, P. J., Green, Balio, Lawton and Boehm, JJ.