Opinion
December 21, 1970
In an action to enjoin picketing, to enjoin the defendant newspaper corporations' refusal to accept plaintiff's advertising, and to recover damages, plaintiff appeals from an order of the Supreme Court, Nassau County, dated February 17, 1970, which (1) denied its motion for a preliminary injunction, (2) granted the cross motion of defendant Long Island Daily Press Publishing Company, Inc., to dismiss the complaint against it for failure to state a cause of action, and (3) also dismissed the action or the complaint as to all the defendants. Order modified by striking therefrom subdivisions 1 and 4 of the decretal paragraph thereof, which dismissed the action or the complaint as to the defendants other than defendant Long Island Daily Press Publishing Company, Inc. As so modified, order affirmed, without costs, and without prejudice to any motion or motions by the other defendants to dismiss the complaint as to them, if they be advised so to move. The record indicates that Special Term treated the cross motion by defendant Long Island Press to dismiss the complaint (made under CPLR 3211, subd. [a], par. 7) as a motion for summary judgment. This was proper. The cross motion was made on affidavits and exhibits (CPLR 3211, subd. [c]; see, also, 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3212.02). However, sua sponte, the court treated the motion as one made by all the defendants even though Long Island Press was the only one to offer supporting proof. In the context of this case it is our view that such action was improper with respect to the other defendants. They should not have been afforded the benefit of a motion for which they offered no support and for which plaintiff was afforded no opportunity to resist. Plaintiff was concerned only with the cross motion by defendant Long Island Press and plaintiff's proof was necessarily limited thereto. Christ, P.J., Rabin, Hopkins, Munder and Latham, JJ., concur.