Federal National Mortgage Ass'n v. Katz

33 A.D.3d 755, 822 N.Y.S.2d 759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 2006
• Status: Published

Opinion

In an action pursuant to RPAPL article 15 to determine claims to certain real property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Tolbert, J.), entered January 5, 2005, which denied its motion for summary judgment and, upon searching the record, awarded summary judgment to the defendants dismissing the complaint.

Ordered that the order is affirmed, with costs to the respondent Spark Real Estate, Inc.

Contrary to the plaintiff’s contention, the Supreme Court properly denied its motion for summary judgment since it failed to establish a prima facie entitlement to such relief (see CPLR 3212; Ayotte v Gervasio, 81 NY2d 1062 [1993]).

Although the defendants did not move for summary judgment, the Supreme Court had the authority pursuant to CPLR 3212 (b) to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Murray v Murray, 28 AD3d 624 [2006]; Goldstein v County of Suffolk, 300 AD2d 441, 442 [2002]). Under the circumstances presented, the Supreme Court properly exercised that authority in awarding summary judgment to the defendants dismissing the complaint. Schmidt, J.P, Santucci, Fisher and Covello, JJ., concur.