SELTER v. MCM DISTRIBUTORS, INC

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; Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106; Image Clothing v. State Natl. Ins. Co., 291 A.D.2d 377). 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; Tatzel v. Kaplan, 292 A.D.2d 440; Gollomp v. Dubbs, 283 A.D.2d 550; Langdon v. Town of Webster, 238 A.D.2d 888). Accordingly, the plaintiffs are entitled to summary judgment on the issue of liability.

PRUDENTI, P.J., RITTER, McGINITY and H. MILLER, JJ., concur.