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Mercedes-Benz Credit Corp. v. Dintino

198 A.D.2d 901 Court N.Y. App. Div. Decision date 1993-11-19 English

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Mercedes-Benz Credit Corporation, Plaintiff, v Dennis Dintino, Defendant and Third-Party Plaintiff-Appellant. Great Lakes Motor Corporation et al., Third-Party Defendants-Respondents.
[604 NYS2d 451]

—Order insofar as appealed from unanimously reversed on the law with costs, motion denied and third-party complaint reinstated against Great Lakes Motor Corporation and Mercedes-Benz of North America, Inc. Memorandum: Third-party defendant Great Lakes Motor Corporation (Great Lakes) moved pursuant to CPLR 3211 (a) (7) to dismiss the third-party complaint for failure to state a cause of action. Supreme Court, without notifying the parties to that action of its intent to do so, "deemed” the motion to dismiss to be a motion for summary judgment and granted summary judgment in favor of Great Lakes and Mercedes-Benz of North America, Inc. That was error (see, CPLR 3211 [c]; Rich v Lefkovits, 56 NY2d 276 , 281). Moreover, the fact that plaintiff moved for summary judgment on the complaint did not authorize Supreme Court to search the record in the third-party action and to grant summary judg

p. 902
ment pursuant to CPLR 3212 (b) in that action (see, Sutton v Cobb, 50 AD2d 995 ). CPLR 3212 (b) authorizes a court to search the record and grant summary judgment in favor of a nonmoving party only with respect to the action or cause of action that is the subject of the summary judgment motion (see, Marshall v New York City Health & Hosps. Corp., 186 AD2d 542 , 543-544; Marsico v Southland Corp., 148 AD2d 503 , 506; Conroy v Swartout, 135 AD2d 945 , 947; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 ; Sutton v Cobb, supra).

Because Supreme Court improperly converted Great Lakes’ motion to dismiss to a motion for summary judgment, it did not consider whether the third-party complaint states a cause of action. We decide that issue in the interest of judicial economy and conclude that it does state a cause of action. That pleading, liberally construed, alleges that the third-party plaintiff suffered damage as the result of negligent repair by Great Lakes of his leased vehicle. Thus, we deny Great Lakes’ motion to dismiss the third-party complaint. (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.) Present — Balio, J. P., Fallon, Boomer and Davis, JJ.

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