Hosid v. Wilson , 78 A.D.2d 575 ( 1980 )

Order unanimously affirmed, with costs. Memorandum: We agree that Special Term should not have treated defendants’ motion to dismiss for failure to state a cause of action as one for summary judgment in the circumstances of this case (CPLR 3211, subd [c]). The motion was properly denied on the merits, however. (Appeal from order of Onondaga Supreme Court—dismiss complaint.) Present—Dillon, P. J., Cardamone, Simons, Callahan and Witmer, JJ.