CITY WIDE PAYROLL SERVICE INC v. European American Bank, Third-Party Defendant-Respondent.

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Supreme Court, Appellate Division, Second Department, New York.

CITY WIDE PAYROLL SERVICE, INC., Plaintiff-Respondent, v. ISRAEL DISCOUNT BANK OF NEW YORK, et al., Defendants-Respondents, All Star Truck & Trailer, Inc., Defendant Third-Party Plaintiff-Appellant, Charles Jerkens, Defendant-Appellant, et al., Defendant; Jerkens Truck & Equipment, Inc., Third-Party Plaintiff-Appellant, European American Bank, Third-Party Defendant-Respondent.

Decided: May 27, 1997

Before BRACKEN, J.P., and RITTER, SULLIVAN and PIZZUTO, JJ. Parker Duryee Rosoff & Haft, New York City (Paula G.A. Ryan, of counsel), for appellants. Cartier, Hogan, Sullivan, Bernstein & Auerbach, Patchogue (William A. Whitman, of counsel), for plaintiff-respondent. Zeichner Ellman & Krause, New York City (David B. Chenkin and John M. Wilson, of counsel), for defendants-respondents Israel Discount Bank of New York and Continental Bank, N.A., now known as Bank of America Illinois.

In an action, inter alia, for a judgment declaring that “there are no legally cognizable claims as to the endorsements and checks referred to” in the complaint other than the plaintiff's claims, All Star Truck & Trailer, Inc., Charles Jerkens, and Jerkens Truck & Equipment, Inc., appeal from (1) so much of a judgment of the Supreme Court, Suffolk County (Gowan, J.), entered April 18, 1996, as, upon an order of the same court dated March 12, 1996, which, inter alia, sua sponte granted summary judgment (a) dismissing their respective cross claims and third-party claims against the defendants third-party defendants Israel Discount Bank of New York and Continental Bank, N.A., and (b) in favor of the plaintiff and against Israel Discount Bank of New York, dismissed their cross claims and third-party claims against the defendants third-party defendants Israel Discount Bank of New York and Continental Bank, N.A., and (2) a judgment of the same court entered May 15, 1996, which directed Israel Discount Bank of New York to release certain funds to the plaintiff.   The appellants' notice of appeal from the order dated March 12, 1996, is deemed a premature notice of appeal from the judgment entered May 15, 1996 (see, CPLR 5520[c] ).

ORDERED that the judgment entered April 18, 1996, is reversed insofar as appealed from;  and it is further,

ORDERED that the judgment entered May 15, 1996, is reversed;  and it is further,

ORDERED that so much of the order dated March 12, 1996, as sua sponte granted summary judgment (1) dismissing the appellants' cross claims and third-party claims against the defendants third-party defendants Israel Discount Bank of New York and Continental Bank, N.A., and (2) in favor of the plaintiff and against Israel Discount Bank of New York is vacated;  and it is further,

ORDERED that the appellants are awarded one bill of costs payable by the respondents appearing separately and filing separate briefs.

While the Supreme Court has the power to grant summary judgment to a nonmoving party, predicated upon a motion for that relief by another party (see, e.g., Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 654 N.Y.S.2d 335, 676 N.E.2d 1178;  Amore Partners v. Mephisto, Inc., 222 A.D.2d 473, 635 N.Y.S.2d 57), it may not sua sponte grant summary judgment on a cause of action if no party has moved for it (see, e.g., Marsico v. Southland Corp., 148 A.D.2d 503, 506, 539 N.Y.S.2d 378;  Andriano v. Caronia, 117 A.D.2d 640, 498 N.Y.S.2d 382).   Here, the record fails to indicate that there was a motion for summary judgment made by any party with respect to the plaintiff's first cause of action and the cross claims of the defendants All Star Truck & Trailer, Inc., and Charles Jerkens and the third-party claims of the third-party plaintiffs Jerkens Truck & Equipment, Inc., and All Star Truck & Trailer, Inc. Therefore, the court should not have sua sponte granted relief on those causes of action.

MEMORANDUM BY THE COURT.

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