Lustig v. Congregation B'Nai Israel

This is a motion by a fourth-party defendant to dismiss a complaint for insufficiency before answer, pursuant to CPLR 3211 (subd. [a], par. 7). The court is disposed to treat it as one for summary judgment under CPLR 3211 (subd. [c]).

CPLR 3211 (subd. [c]) contains an extraordinary power; the power to treat any 3211 motion as one for summary judgment. The effect of the exercise of such a power is to accord the resultant judgment the same res judicata effect that belongs to a judgment rendered after a plenary trial. ‘ ‘ With such an impact, this ‘ treatment ’ is not to be lightly indulged.”…