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MICHELLE EY, Respondent, v. THOMAS MECCA et al., Defendants, and ROSARIO CHIARELLI, Appellant.

Ordered that the order is reversed insofar as appealed from, on the law, with costs.

While the Supreme Court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party ( see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), it may do so only with respect to a cause of action or issue that is the subject of the motion before the court ( see State Farm Fire Cos. Co. v Browne, 12 AD3d 361 [2004]; Aguirre v Castle Am. Constr., 278 AD2d 348 [2000]). Here, there was no motion before the Supreme Court for summary judgment on the issue of the appellant's vicarious liability to the plaintiff pursuant to Vehicle and Traffic Law § 388 (1). Therefore, the Supreme Court erred in searching the record and awarding the plaintiff summary judgment on the issue of the appellant's vicarious liability.

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EY v. MECCA
(Jun 12, 2007)