
    Government Development Bank for Puerto Rico, Respondent, v Ernst & Young et al., Appellants.
    [631 NYS2d 147]
   Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered August 4, 1994, which granted reargument and, upon reargument, adhered to a prior decision denying defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred, unanimously modified, on the law, to provide that the denial is without prejudice, and otherwise affirmed, without costs.

The IAS Court properly denied defendants’ motion to dismiss on Statute of Limitations grounds, as defendants did not show that, on the facts as alleged or as conceded by plaintiff, the action was time-barred. However, the timeliness of the action clearly depends on factual issues relating to the time at which the cause of action accrued. Because defendants had neither notice that the court would treat the motion as one for summary judgment pursuant to CPLR 3211 (c) nor an opportunity to explore the outstanding factual issues by way of discovery, the denial should have been without prejudice to further consideration of such factual issues, upon a motion by defendants for summary judgment, or, if necessary, at trial. Whether there should be expedited and limited discovery on the timeliness issue is a question that should be left to the IAS Court. Concur — Ellerin, J. P., Wallach, Nardelli, Tom and Mazzarelli, JJ.  