Opinion
December 7, 1987
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the judgment is reversed, on the law, with costs, the plaintiff Antoinette Grimaldi's motion is denied, and upon searching the record, the defendant is awarded summary judgment against the plaintiff Vincent Grimaldi, the action insofar as it is asserted by Vincent Grimaldi is dismissed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings with respect to Antoinette Grimaldi's claim against the defendant.
The underlying action was commenced on behalf of the plaintiffs Vincent and Antoinette Grimaldi notwithstanding the fact that the subject note evinced an indebtedness by the defendant to Antoinette Grimaldi alone. Vincent Grimaldi has failed to allege a cause of action in his favor. CPLR 3212 (b) provides that "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion". Thus, a motion for summary judgment, irrespective of by whom it is made, empowers a court, even on appeal, to search the record and award judgment where appropriate (see, Garson v Garson, 105 A.D.2d 726, 729-730, affd 66 N.Y.2d 928; DeBrossard v Van Norden, 113 A.D.2d 123, 127; Fertico Belgium v Phosphate Chems. Export Assn., 100 A.D.2d 165, 171, appeal dismissed 62 N.Y.2d 802). Under the circumstances, the defendant is awarded summary judgment against the plaintiff Vincent Grimaldi and the action insofar as it is asserted by him is dismissed.
With respect to Antoinette Grimaldi, however, the papers submitted in opposition to the motion for summary judgment raise a triable issue of fact which precludes the granting of summary judgment (see, Scolaro, Shulman, Cohen Lawler v Easter, 98 A.D.2d 953, appeal dismissed 62 N.Y.2d 646). Accordingly, the matter is remitted to the Supreme Court, Kings County, for further proceedings with respect to her claim.
We have considered the defendant's remaining contentions and find them to be without merit. Thompson, J.P., Weinstein, Rubin and Harwood, JJ., concur.