Osipova v. J & J Hotel Co.

290 A.D.2d 358, 736 N.Y.S.2d 229, 2002 N.Y. App. Div. LEXIS 518

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 2002
• Status: Published

Opinion

Order, Supreme Court, New York County (Michael Stallman, J.), entered on or about February 7, 2001, which, insofar as appealed from, converted the municipal defendants’ motion for dismissal for failure to state a cause of action to one for summary judgment and granted summary judgment dismissing the complaint as against said defendants, unanimously affirmed, without costs.

The municipal defendants’ motion to dismiss was properly converted into one for summary judgment pursuant to CPLR 3211 (c). Contrary to plaintiffs argument, she was afforded the requisite notice of the conversion and opportunity to make factual submissions. Summary judgment dismissing plaintiffs claims against the municipal defendants was proper in light of plaintiffs failure to exhaust administrative remedies (see, Matter of BMP Contr. Corp. v City Envtl. Control Bd., 202 AD2d 223). In any event, had plaintiffs claims against the municipal defendants been made after administrative avenues of relief had been exhausted, such claims, properly brought within a proceeding pursuant to CPLR article 78 (see, Caponigro v White, 223 AD2d 365, lv denied 88 NY2d 802), would have been properly rejected on the merits since there was a rational basis for the challenged determination fining plaintiff for creating a nuisance within the meaning of Administrative Code of City of New York § 17-142. We have considered plaintiffs remaining arguments and find them unavailing. Concur — Nardelli, J.P., Tom, Sullivan, Ellerin and Rubin, JJ.