Sherman v. Hallmark

OPINION OF THE COURT

Debra Rose Samuels, J.

For the reasons stated below, respondent’s motion to dismiss pursuant to CPLR 3211 (a), which the court elects to treat as a motion for summary judgment pursuant to CPLR 3212, is denied. Petitioners’ cross motion for summary judgment in their favor is granted.

1. Summary Judgment May Properly be Granted

Respondent argues that petitioners’ cross motion for summary judgment must be denied because respondent has not yet answered, and CPLR 3212 (a) allows summary judgment only “after issue has been joined”. CPLR 3211 (c), however, provides that “Upon the…