Mercedes-Benz Credit Corp. v. Dintino

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1993
• Status: Published

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 judgment 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.