Federal Natl. Mtge. Assn. v Katz
2006 NY Slip Op 07448 [33 AD3d 755]
October 17, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 13, 2006

Federal National Mortgage Association, Appellant,
Peter L. Katz et al., Respondents.

[*1]In an action pursuant to RPAPL article 15 to determine claims to certain real property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Tolbert, J.), entered January 5, 2005, which denied its motion for summary judgment and, upon searching the record, awarded summary judgment to the defendants dismissing the complaint.

Ordered that the order is affirmed, with costs to the respondent Spark Real Estate, Inc.

Contrary to the plaintiff's contention, the Supreme Court properly denied its motion for summary judgment since it failed to establish a prima facie entitlement to such relief (see CPLR 3212; Ayotte v Gervasio, 81 NY2d 1062 [1993]).

Although the defendants did not move for summary judgment, the Supreme Court had the authority pursuant to CPLR 3212 (b) to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Murray v Murray, 28 AD3d 624 [2006]; Goldstein v County of Suffolk, 300 AD2d 441, 442 [2002]). Under the circumstances presented, the Supreme Court properly exercised that authority in awarding summary judgment to the defendants dismissing the complaint. Schmidt, J.P., Santucci, Fisher and Covello, JJ., concur.