Summary
finding error with conversion where the parties did not "submit[] facts and arguments clearly indicating that they were deliberately charting a summary judgment course"
Summary of this case from Pascal v. Port Auth. of N.Y. & N.J.Opinion
Argued October 14, 1988
Decided November 17, 1988
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Angelo Graci, J.
Norman A. Olch for appellant.
Armand Fried for respondents.
In this defamation action, plaintiff alleged that defendants maliciously made false statements about him during the course of meetings on church elections. Defendants moved to dismiss the complaint asserting the defense of qualified privilege and Supreme Court granted the motion.
The Appellate Division incorrectly characterized Supreme Court's ruling on defendants' motion as a grant of summary judgment pursuant to CPLR 3212. Supreme Court's order, however, dismissed the complaint for failure to state a cause of action (CPLR 3211 [a] [7]), noting that defendants' preanswer motion sought dismissal "pursuant to CPLR 3211". Indeed, in their arguments to Supreme Court and the Appellate Division, both parties treated the motion solely as one for dismissal for failure to state a cause of action. Thus, the Appellate Division could not properly convert defendants' motion into a motion for summary judgment absent "adequate notice to the parties" (CPLR 3211 [c]) which, in this case, should have been expressly given by the court. Neither party had otherwise received "adequate notice" by expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were "deliberately charting a summary judgment course" (Four Seasons Hotels v Vinnik 127 A.D.2d 310, 320; cf., Monteferrante v New York City Fire Dept., 63 A.D.2d 576, affd for reasons stated below 47 N.Y.2d 737). Nor did the parties indicate that the case involved a purely legal question rather than any issues of fact (Four Seasons Hotels v Vinnik, 127 A.D.2d, at 320, supra; Siegel, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:44, at 3 [1988 Supp Pamph]). Consequently, the court's sua sponte treatment of the motion as one for summary judgment deprived plaintiff of the "opportunity to make an appropriate record" and thus thwarted the very purpose of CPLR 3211 (c) (Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635).
[2] Contrary to the Second Department's holding in Reed v Shoratlantic Dev. Co. ( 121 A.D.2d 525), we conclude that the unilateral actions of a party in seeking summary judgment on a CPLR 3211 (a) (7) motion cannot constitute "adequate notice" to the other party in compliance with the requirement of CPLR 3211 (c).
Moreover, "given their most favorable intendment" (Arrington v New York Times Co., 55 N.Y.2d 433, 442), the allegations of plaintiff's complaint sufficiently state a cause of action for defamation. Notwithstanding defendants' assertion of a qualified privilege in that the allegedly defamatory statements, made during church meetings, were "fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned" (Lovell Co. v Houghton, 116 N.Y. 520, 526), plaintiff's allegations that the statements were maliciously made, if proven, would overcome that defense (Loughry v Lincoln First Bank, 67 N.Y.2d 369, 376; Toker v Pollak, 44 N.Y.2d 211, 219; Shapiro v Health Ins. Plan, 7 N.Y.2d 56, 60; Lovell Co. v Houghton, 116 N.Y., at 525, supra).
Accordingly, the order of the Appellate Division should be reversed, with costs, and the defendants' motion to dismiss the complaint denied.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in Per Curiam opinion.
Order reversed, etc.