Opinion
June 1, 1987
Appeal from the Supreme Court, Suffolk County (Luciano, J.).
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 N.Y.2d 106; Maddox v City of New York, 108 A.D.2d 42, affd 66 N.Y.2d 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 A.D.2d 30). Mangano, J.P., Thompson, Lawrence and Sullivan, JJ., concur.