Opinion
May 27, 1997
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the judgment entered April 18, 1996, is reversed insofar as appealed from; and it is further,
Ordered that the judgment entered May 15, 1996, is reversed; and it is further,
Ordered that so much of the order dated March 12, 1996, as sua sponte granted summary judgment (1) dismissing the appellants' cross claims and third-party claims against the defendants third-party defendants Israel Discount Bank of New York and Continental Bank, N.A., and (2) in favor of the plaintiff and against Israel Discount Bank of New York is vacated; and it is further,
Ordered that the appellants are awarded one bill of costs payable by the respondents appearing separately and filing separate briefs.
While the Supreme Court has the power to grant summary judgment to a nonmoving party, predicated upon a motion for that relief by another party ( see, e.g., Dunham v. Hilco Constr. Co., 89 N.Y.2d 425; Amore Partners v. Mephisto, Inc., 222 A.D.2d 473), it may not sua sponte grant summary judgment on a cause of action it no party has moved for it ( see, e.g., Marsico v. Southland Corp., 148 A.D.2d 503, 506; Andriano v. Caronia, 117 A.D.2d 640). Here, the record fails to indicate that there was a motion for summary judgment made by any party with respect to the plaintiff's first cause of action and the cross claims of the defendants All Star Truck Trailer, Inc., and Charles Jerkens and the third-party claims of the third-party plaintiffs Jerkens Truck Equipment, Inc., and All Star Truck Trailer, Inc. Therefore, the court should not have sua sponte granted relief on those causes of action.
Bracken, J.P., Ritter, Sullivan and Pizzuto, JJ., concur.