M. W. Zack Metal Company, Appellant,
v.
International Navigation Corporation of Monrovia et al., Defendants, and Newcastle Protection & Indemnity Association et al., Respondents.
Court of Appeals of the State of New York.
Anthony B. Cataldo for appellant.
Helen M. Benzie for Federal Insurance Company and another, respondents.
Joseph F. De May, Jr., for Newcastle Protection & Indemnity Association and others, respondents.
Concur: Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, TITONE and HANCOCK, JR. Taking no part: Judge ALEXANDER.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (112 AD2d 865). We add that there was no prejudice to plaintiff in the Appellate Division's having dealt with the motions as ones for summary judgment even though Special Term's consideration of them was only as motions to dismiss for failure to state a cause of action. Defendants' motion and cross motion were stated to have been made pursuant to CPLR 3212. Moreover, plaintiff's answering affidavit acknowledged in several places that defendants' motions were for summary judgment and plaintiff responded to the motions by setting forth factual data in support of the allegations of the complaint (Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100, 103; O'Hara v Del Bello, 47 N.Y.2d 363, 367-368; see, Rich v Lefkovits, 56 N.Y.2d 276, 281-283).