Order of the Supreme Court, New York County (David B. Saxe, J.), entered on October 25, 1982, which dismissed the third-party complaint by defendants and third-party plaintiffs, is reversed, on the law, and the motion to dismiss the third-party complaint is denied, with costs and disbursements. H Plaintiff commenced the instant action against defendants, her former attorneys, for their alleged legal malpractice in advising her to sign a settlement agreement with regard to a disputed family trust. *1019Defendants thereupon served a third-party complaint upon plaintiff’s present lawyers, third-party defendants herein, on the ground that the latter had committed malpractice in counseling her on the trust and in instituting the case of Matter ofRosner v Caplow (105 Mise 2d 592, mod 90 AD2d 44, affd 60 NY2d 880) and that they were, therefore, liable for contribution to the defendants in the event of an award in favor of plaintiff. The third-party defendants then moved pursuant to CPLR 3211 to dismiss the third-party complaint for failure to state a cause of action and as being contrary to sound public policy. In granting the motion to dismiss, Special Term concluded that the legal advice provided by the second group of lawyers did not constitute malpractice and that, further, public policy mandated dismissal since allowing the third-party complaint to stand would create a conflict of interest for plaintiff’s current attorneys. I In Schauer v Joyce (54 NY2d 1), the Court of Appeals held that a lawyer being sued by a former client for malpractice could properly bring a third-party claim for contribution against another attorney who later represented the client in the same matter. At issue in that case, as is also the situation here, was whether such a complaint could withstand a motion to dismiss. A subsequent case interpreting Schauer v Joyce (supra) laid down three requirements of a valid claim for attorney contribution: (1) the third-party defendant owes a duty to the plaintiff in the main action, (2) there was a breach of this duty, and (3) the third-party defendant’s breach of this duty contributed to the plaintiff’s injuries. (Crow-Crimmins-Wolff & Munier v County of Westchester, 90 AD2d 785.) Applying these criteria to the instant matter, the third-party complaint contains sufficient allegations to defeat a challenge under CPLR 3211. H Although Special Term attempted to distinguish between the facts in Schauer v Joyce (supra) and those involved here, the court made what is, in effect, a factual determination which might have been appropriate to a motion for summary judgment (CPLR 3212), but should not have been the basis for a decision on a motion to dismiss. Special Term and our dissenting brethren have addressed themselves to the merits of the case rather than limiting themselves to a consideration of the sufficiency of the third-party complaint. In that connection, a motion to dismiss may not be converted into a motion for summary judgment without giving the opposing party adequate notice to set forth its evidentiary case and not rely solely upon its pleadings (CPLR 3211, subd [c]; 211 West 56th St. Assoc, v Department of Housing Preservation & Dev., 78 AD2d 793). As the Court of Appeals explained in Rovello v Orofino Realty Co. (40 NY2d 633,635): “The mere fact that, judged on the complaint and affidavits alone, plaintiff could not withstand a motion for summary judgment under CPLR 3212, which requires disclosure of all the evidence on the disputed issues, cannot be controlling. Of course, CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal, as is the case under CPLR 3212 when'defendant has made an evidentiary showing that refutes the pleaded cause of action. If plaintiff chooses to stand on his pleading alone, confident that its allegations are sufficient to state all the necessary elements of a cognizable cause of action, he is at liberty to do so and, unless the motion to dismiss is converted by the court to a motion for summary judgment, he will not be penalized because he has not made an evidentiary showing in support of his complaint. As amended in 1973, CPLR 3211 (subd [c]) explicitly requires that if the court decides to treat a CPLR 3211 (subd [a]) motion as one for summary judgment, it must first provide adequate notice to the parties, and thus give them an opportunity to make an appropriate record”. Consequently, since the third-party complaint herein was sufficient on its face, Special Term was not warranted in granting the motion to dismiss. Concur — Ross, Milonas and Fein, JJ.