Schultz v. Estate of Sloan

In an action to recover damages for breach of contract in which a third-party action was interposed for indemnification, the defendants-third party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Nelson, J.), dated September 9, 2004, as granted that branch of the motion of the third-party defendant which was for summary judgment dismissing the third-party complaint. Ordered that the order is affirmed insofar as appealed from, with costs. Ordinarily, if a party mislabels a CPLR 3212 motion as a motion pursuant to CPLR 3211, the opponent of the motion must be notified that the motion will be treated as one for summary judgment and given the opportunity to respond to the motion as such (see Rich v Lefkovits, 56 NY2d 276, 282 [1982]). However, the error of mislabeling a CPLR 3212 motion as a CPLR 3211 motion should be disregarded where, as in this case, it did not prejudice the opponent of the motion (see Hertz Corp. v Luken, 126 AD2d 446, 449 [1987]). The appellants’ remaining contentions are without merit. Santucci, J.P., Luciano, Crane and Skelos, JJ., concur.