De La Poer v. Salomon Bros.

Order, Supreme Court, New York County (Joan Lobis, J.), entered on or about March 27, 1992, dismissing the complaint, unanimously affirmed, without costs.

We agree with the IAS Court that "indisputable evidence” establishes that six months prior to entering into the settlement agreement, plaintiff was aware of the deferred nature of defendant husband’s bonus, and his ability to borrow an amount equal to the bonus, and that there is no merit to her claim that these facts were fraudulently concealed. We note that the IAS Court did not err in consolidating defendant Salomon’s motion to dismiss pursuant to CPLR 3211 (a) (1) and (7) with defendant Schlesinger’s motion for summary judgment pursuant to CPLR 3212, and in treating the former as a motion for summary judgment without giving notice pursuant to CPLR 3211 (c), since the parties submitted facts and arguments clearly indicating that they were " 'deliberately charting a summary judgment course’ ” (Mihlovan v Grozavu, 72 NY2d 506, 508)

We have reviewed plaintiff’s remaining claims and find them to be without merit. Concur—Sullivan, J. P., Carro, Ellerin and Wallach, JJ.