Kasper v. Town of Smithtown — 123 A.D.2d 743

Majority

p. 743

Benjamin Kasper, Respondent-Appellant, v Town of Smithtown, Appellant-Respondent.

In an action, inter alia, to recover damages for a de facto taking, (1) the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Gerard, J.), dated October 29, 1984, as denied its cross motion for summary judgment, inter alia, on the ground that the action was barred by collateral estoppel, and granted that branch of the plaintiff’s motion which was to strike its second affirmative defense; and (2) the plaintiff cross-appeals from so much of the same order as denied those branches of his motion which were to strike the third, fourth, fifth, and sixth affirmative defenses, and for partial summary judgment in his favor on the issue of liability.

Ordered that the order is modified, on the law, by granting the plaintiff partial summary judgment dismissing the eighth affirmative defense, and as so modified, the order is affirmed, with costs to the plaintiff.

p. 744

We dismiss the affirmative defense of collateral estoppel as being without merit (see, Schwartz v Public Administrator of County of Bronx, 24 NY2d 65 ; Kret v Brookdale Hosp. Med. Center, 93 AD2d 449 , affd 61 NY2d 861 ). In doing so, we note that on a motion for summary judgment, this court has the power to search the record and grant relief to a nonmoving or nonappealing party (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 ). Lazer, J. P., Mangano, Bracken and Niehoff, JJ., concur.

Cases cited

Schwartz v. Public Administrator 24 NY2d 65 N.Y. 1969-02-20 p. 744
Kret v. Brookdale Hospital Medical Center 93 AD2d 449 N.Y. App. Div. 1983-05-09 p. 744
Jordan Kret v. Brookdale Hospital Medical Center 61 NY2d 861 N.Y. 1984-02-23 p. 744
Merritt Hill Vineyards Inc. v. Windy Heights Vineyard, Inc. 61 NY2d 106 N.Y. 1984-02-21 p. 744