Aguirre v. Castle American Construction, L. L. C.

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Weiner, J.), dated December 21, 1999, as, sua sponte, in effect, granted summary judgment to the third-party defendant dismissing the third-party complaint. Ordered that on the Court’s own motion, the appellant’s notice of appeal is treated as an application for leave to appeal, [349] and leave to appeal is granted {see, CPLR 5701 [c]); and it is further, Ordered that the order is reversed insofar as appealed from, on the law, with costs, the third-party complaint is reinstated, and the matter is remitted to the Supreme Court, Rockland County, for a determination on the merits of the plaintiffs’ cross motion to sever the third-party action. The Supreme Court “may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of motions before the court” (Dunham, v Hilco Constr. Co., 89 NY2d 425, 429-430; see, Amore Partners v Mephisto, Inc., 222 AD2d 473; Marsico v Southland Corp., 148 AD2d 503, 506; Andriano v Caronia, 117 AD2d 640; City Wide Payroll Serv. v Israel Discount Bank, 239 AD2d 537). Here, the record demonstrates that there was no motion for summary judgment by any party relating to the merits of the third-party action. Accordingly, the Supreme Court should not have sua sponte, in effect, granted summary judgment dismissing the third-party action. The third-party defendant’s contentions to the contrary are without merit. Additionally, it appears that the Supreme Court failed to address the plaintiffs’ cross motion to sever the third-party action based on its decision to dismiss the third-party complaint. In light of our determination, the matter is remitted to the Supreme Court, Rockland County, for a determination of that cross motion. Florio, J. P., McGinity, Luciano and Feuerstein, JJ., concur.