Vecchio v. Lack

131 A.D.2d 465, 516 N.Y.S.2d 97, 1987 N.Y. App. Div. LEXIS 47920

Opinion

In an action to recover damages for libel, (1) the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Luciano, J.), entered April 10, 1985, as failed to search the record and thereupon grant summary judgment to them dismissing the complaint, and (2) the plaintiff cross-appeals from so much of the same order as denied that branch of his motion which was for partial summary judgment on the issue of liability.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Although the defendants never cross-moved for summary judgment, they may raise on appeal Special Term’s failure to grant them that relief because both Special Term and this court have the authority pursuant to CPLR 3212 (b) to search the record and award summary judgment to a nonmoving party (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Maddox v City of New York, 108 AD2d 42, affd 66 NY2d 270).

On the record presented here, the plaintiff has stated a cause of action to recover damages for libel and triable issues of fact exist as to truth and malice, precluding the granting of summary judgment to the plaintiff or to the defendants (Pace v Rebore, 107 AD2d 30). Mangano, J. P., Thompson, Lawrence and Sullivan, JJ., concur.