In TST Impreso, Inc. v. Cosmos Forms, Ltd. (202 AD2d 493, 494, 609 N.Y.S.2d 59 [2d Dept 1994]), the court at special term granted the plaintiff's motion for summary judgment after denying the defendants' motion to dismiss for failure to state a cause of action.
The Second Department, in affirming, stated:
CPLR 3211(c) permits a motion pursuant to CPLR 3211 to be treated as one for summary judgment where "adequate notice" has been given to the parties. In this case, before interposing an answer, the appellant moved to dismiss the complaint for failure to state a cause of action (see, CPLR 3211 [a] ), and the plaintiff then cross-moved for summary judgment in its favor. Accordingly, the appellant cannot claim that she lacked adequate notice that the issue of summary judgment was before the court particularly when the motion papers indicate that the parties were "deliberately charting a summary judgment course" (TST/Impreso v. Cosmos Forms, Ltd., 202 AD2d 493, 494, 609 N.Y.S.2d 59 [2d Dept 1994] supra).
It appears that TST/Impresso required only that the plaintiff chart a summary judgment course which provided defendant with the necessary notice.