SELTER v. Nostrand Realty Co., et al., Appellants. (2002)

In an action, inter alia, to recover for damage to property, the defendants Nostrand Realty Co. and Irving Borenstein, individually and d/b/ a Nostrand Realty Co., appeal from an order of the Supreme Court, Kings County (Huttner, J.), dated May 11, 2001, which denied their motion for partial summary judgment dismissing so much of the complaint as sought to recover for flood damage to the plaintiffs' property.

ORDERED that the order is modified, on the law, by adding a provision thereto that upon searching the record, summary judgment is awarded to the plaintiffs on the issue of liability;  as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of damages.

Although the plaintiffs did not cross-move for summary judgment, this court is authorized by CPLR 3212(b) to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the court (see Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429, 654 N.Y.S.2d 335, 676 N.E.2d 1178;  Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 472 N.Y.S.2d 592, 460 N.E.2d 1077;  Image Clothing v. State Natl. Ins. Co., 291 A.D.2d 377, 736 N.Y.S.2d 885).   Upon searching the record, we find, as a matter of law, that the defendants Nostrand Realty Co. and Irving Borenstein, individually and d/b/a Nostrand Realty Co., artificially diverted surface waters onto the plaintiffs' property (cf. Kossoff v. Rathgeb-Walsh, Inc., 3 N.Y.2d 583, 589-590, 170 N.Y.S.2d 789, 148 N.E.2d 132;  Tatzel v. Kaplan, 292 A.D.2d 440, 738 N.Y.S.2d 863;  Gollomp v. Dubbs, 283 A.D.2d 550, 725 N.Y.S.2d 219;  Langdon v. Town of Webster, 238 A.D.2d 888, 661 N.Y.S.2d 564).   Accordingly, the plaintiffs are entitled to summary judgment on the issue of liability.