Geoffrey S. Matherson & Associates, Ltd. v. Siegler

305 A.D.2d 457, 759 N.Y.S.2d 343

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 2003
• Status: Published

Opinion

—In an action to recover a real estate brokerage commission, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered April 16, 2002, as, upon an order of the same court, dated January 24, 2002, which, inter alia, searched the record and granted summary judgment to the defendants, dismissed the complaint.

Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, so much of the order dated January 24, 2002, as searched the record and granted summary judgment to the defendants is vacated, and the complaint is reinstated.

“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’ ” (Aguirre v Castle Am. Constr., 278 AD2d 348, 349 [2000], quoting Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]). In this case, the Supreme Court erred in searching the record, since the issue in question was not the subject of the motion before it. Florio, J.P., Feuerstein, McGinity and Adams, JJ., concur.