Schwartz v. Aetna Life Insurance & Annuity Co.

Lawton, J. (dissenting in part).

I dissent in part because Supreme Court should not have sua sponte granted plaintiff summary judgment. CPLR 3212 (b) permits a court to grant summary judgment to a non-moving party without a cross motion. That relief is warranted only if, after searching the record, a court concludes that no triable issues of fact exist *976and that the non-moving party is entitled to judgment as a matter of law (see generally, Grimaldi v Pagan, 135 AD2d 496; Fertico Belgium v Phosphate Chems. Export Assn., 100 AD2d 165, 171). Those conditions have not been met in this case. A…