Opinion
No. 1713.
October 25, 2007.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered June 12, 2006, which granted defendant's motion to dismiss to the extent of dismissing the cause of action for breach of contract, and granting defendant summary judgment on the causes of action for breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and misrepresentation, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.
Bragar Wexler Eagle, PC, New York (Raymond A. Bragar of counsel), for appellant.
Buchanan Ingersoll Rooney PC, New York (Stuart P. Slotnick of counsel), for respondent.
Before: Lippman, P.J., Andrias, Marlow, Buckley and Catterson, JJ.
Plaintiff's breach of contract action should not have been dismissed under CPLR 3211 (a) ( see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91). As to the remaining causes of action, since it is not clear from the record that both parties had deliberately charted a course for summary judgment, that relief should not have been granted in the absence of adequate notice to the litigants ( see Rovello v Orofino Realty Co., 40 NY2d 633, 635; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320-321 [1987]).