Aronoff v. Albanese

In a stockholder’s derivative action, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County, dated November 20, 1978, which treated defendants’ motion to dismiss the complaint as one for summary judgment, granted summary judgment and dismissed the complaint and (2) a further order of the same court, dated February 9, 1979, which denied their motion for reargument. Appeal from the order dated February 9, 1979 dismissed, without costs or disbursements. An order denying reargument is not appealable. (See Mazur v Mazur, 38 AD2d 951; Lefrak v Lefrak, 47 AD2d 912.) Order dated November 20, 1978 reversed, on the law, without costs or disbursements, and motion denied. In our view, there is nothing in the record here which would provide the adequate notice requisite to converting the motion to dismiss to one for summary judgment. "A motion to dismiss pursuant to CPLR 3211 (subd [a]) may not be treated as one for summary judgment without adequate notice to the parties (CPLR 3211, subd [c]; Rovello v Orofino Realty Co., 40 NY2d 633). The record reveals no such notice” (Fletcher v Fletcher, 56 AD2d 589, 590; see, also, Mobil Oil Corp. v Town of North Hempstead, 59 AD2d 551; Keller v Barry, 73 AD2d 611). Hopkins, J. P., Damiani, Rabin and O’Connor, JJ., concur.