Patel v. Primary Construction, LLC

In an action, inter alia, to recover damages for nuisance and trespass, the plaintiffs appeal from so much of an order of the Supreme Court, Orange County (Onofry, J.), dated September 14, 2012, as converted the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint into one for summary judgment dismissing the complaint, and thereupon granted the motion.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendants’ motion is denied.

The Supreme Court erred when it converted the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the…