On review of the record, we agree that Special Term erred in granting summary judgment to INA as against Morgan Guaranty, holding that INA had properly negotiated the letters of credit. This issue was not specifically raised on any of the several motions before the court.
It appears from the record that there were three motions submitted to Special Term, one by the Division of the Lottery for summary judgment on its counterclaims against plaintiffs and INA, a cross motion by INA to deposit into court $200,000 and be discharged from further liability, and a cross motion by plaintiffs to stay further proceedings pending determination of the matter in the Court of Claims. Special Term, in painstaking fashion, reviewed the several claims and disposed of each motion. However, in addition, the court sua sponte granted INA summary judgment, concluding that the insurer properly negotiated the letters of credit, albeit no cross motion for that relief was made. Inasmuch as no summary judgment motion was served under CPLR 3212, and INA did not seek such relief in its papers, as required under CPLR 2214 and 2215, it was error for Special Term to do so here (see, Double A Limousine Serv. v. New York, N Y Limousine Serv., 130 A.D.2d 403; Jillsunan Corp. v. Wallfrin Indus., 79 A.D.2d 943; Andriano v. Caronia, 117 A.D.2d 640, 642-643).
Accordingly, we modify to vacate so much of the order as granted summary judgment to INA against Morgan Guaranty on the Vend letter of credit, without prejudice to either party moving, on proper papers, for such relief as may be appropriate. In doing so, we have not considered the underlying merits which, although addressed by the parties in their points on appeal, were not submitted for disposition at Special Term.
Concur — Sandler, J.P., Carro, Kassal, Rosenberger and Smith, JJ.