EY v. MECCA

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.