Key Bank of Central New York v. Puliafico

Order and judgment entered January 6,1982 granting plaintiff’s motion for summary judgment unanimously reversed. Order entered January 6,1982 denying defendants’ cross.motion unanimously affirmed, without costs, and matter remitted to Supreme Court, Oneida County, for further proceedings in accordance with the following memorandum: Since defendants’ cross motion to dismiss (CPLR 3211, subd [a], par 4) was denied, Special Term erred in granting plaintiff’s motion for summary judgment in lieu of complaint (CPLR 3213) without giving defendants an opportunity to submit answering papers (see CPLR 2001, 3211, subd [f]; see, also, North Broadway Funding Corp. v Freed, 45 AD2d 759) (Appeal from orders and judgment of Supreme Court, Oneida County, Miller, J. — summary judgment.) Present — Dillon, P. J., Callahan, Green, O’Donnell and Schnepp, JJ.