Rose v. Cosgrove

70 A.D.2d 1056, 417 N.Y.S.2d 571, 1979 N.Y. App. Div. LEXIS 12692

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1979
• Status: Published

Opinion

— Order insofar as it grants summary judgment to plaintiff unanimously reversed, without costs, and otherwise order affirmed. Memorandum: The court properly denied defendant’s motion under CPLR 3211 (subd [a], par 7) to dismiss plaintiff’s complaint to recover money in defendant’s possession taken from plaintiff at the time of her arrest on drug charges which were ultimately dismissed. It was error, however, for the court to treat the motion as one for summary judgment (CPLR 3211, subd [c]) without giving adequate notice to the parties of its intention to do so and affording them an opportunity to submit papers pertaining to the summary judgment motion (see Gronin v Dessau, 58 AD2d 566; Charitable Promotions v Anka, 58 AD2d 165). (See, generally, Boyle v Kelley, 42 NY2d 88.) (Appeal from order of Erie Supreme Court — summary judgment.) Present — Dillon, P. J., Simons, Hancock, Jr., Doerr and Moule, JJ.