Opinion
December 29, 1997
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
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 N.Y.2d 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 A.D.2d 413; cf., 51 St. Nicholas Realty Corp. v. City of New York, 218 A.D.2d 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 N.Y.2d 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 Lerner, JJ., concur.