Mercedes-Benz Credit Corp. v. Dintino

198 A.D.2d 901, 604 N.Y.S.2d 451, 1993 N.Y. App. Div. LEXIS 11569

Opinion

—Order insofar as appealed from unanimously reversed on the law with costs, motion denied and third-party complaint reinstated against Great Lakes Motor Corporation and Mercedes-Benz of North America, Inc. Memorandum: Third-party defendant Great Lakes Motor Corporation (Great Lakes) moved pursuant to CPLR 3211 (a) (7) to dismiss the third-party complaint for failure to state a cause of action. Supreme Court, without notifying the parties to that action of its intent to do so, "deemed” the motion to dismiss to be a motion for summary judgment and granted summary judgment in favor of Great Lakes and Mercedes-Benz of North America, Inc. That was error (see, CPLR 3211 [c]; Rich v Lefkovits, 56 NY2d 276, 281). Moreover, the fact that plaintiff moved for summary judgment on the complaint did not authorize Supreme Court to search the record in the third-party action and to grant summary judg ment pursuant to CPLR 3212 (b) in that action (see, Sutton v Cobb, 50 AD2d 995). CPLR 3212 (b) authorizes a court to search the record and grant summary judgment in favor of a nonmoving party only with respect to the action or cause of action that is the subject of the summary judgment motion (see, Marshall v New York City Health & Hosps. Corp., 186 AD2d 542, 543-544; Marsico v Southland Corp., 148 AD2d 503, 506; Conroy v Swartout, 135 AD2d 945, 947; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943; Sutton v Cobb, supra).

Because Supreme Court improperly converted Great Lakes’ motion to dismiss to a motion for summary judgment, it did not consider whether the third-party complaint states a cause of action. We decide that issue in the interest of judicial economy and conclude that it does state a cause of action. That pleading, liberally construed, alleges that the third-party plaintiff suffered damage as the result of negligent repair by Great Lakes of his leased vehicle. Thus, we deny Great Lakes’ motion to dismiss the third-party complaint. (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.) Present — Balio, J. P., Fallon, Boomer and Davis, JJ.