Opinion
2002-06766
Argued April 24, 2003.
May 12, 2003.
In an action to recover a real estate brokerage commission, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered April 16, 2002, as, upon an order of the same court, dated January 24, 2002, which, inter alia, searched the record and granted summary judgment to the defendants, dismissed the complaint.
Bernard A. Nathan, P.C., Hauppauge, N.Y., for appellant.
Mitchell A. Barnett, Garden City, N.Y., for respondents.
Before: ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, LEO F. McGINITY, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, so much of the order dated January 24, 2002, as searched the record and granted summary judgment to the defendants is vacated, and the complaint is reinstated.
"The Supreme Court `may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of motions before the court'" (Aguirre v. Castle Am. Constr., 278 A.D.2d 348, 349 quoting Dunham v. Hilco Constr. Co., 89 N.Y.2d 429-430). In this case, the Supreme Court erred in searching the record, since the issue in question was not the subject of the motion before it.
FLORIO, J.P., FEUERSTEIN, McGINITY and ADAMS, JJ., concur.