Tops Markets v. S&R Co.

—Order and judgment unanimously affirmed with costs. Memorandum: Prior to the joinder of issue, S&R Company of West Seneca (defendant) moved to dismiss the second amended complaint and plaintiff cross-moved for summary judgment. Supreme Court properly treated the motion as one for summary judgment, denied the motion and granted the cross motion. We reject the contention of defendant that it did not receive notice, as required by CPLR 3211 (c), of the court’s intention to treat its motion as a motion for summary judgment. Such notice is not required where, as here, the action involves purely…