THE JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANT PARTIAL SUMMARY JUDGMENT ON THE STRUCTURE-LOSS (FIRE-DAMAGE) CLAIM; THE PARTIES WERE NOT MADE AWARE OF THAT POSSIBILITY PRIOR TO THE RULING (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a decision addressing many property-insurance (fire loss) issues not summarized here, determined the judge should not have, sua sponte, granted a motion for partial summary judgment:

… Supreme Court erred in sua sponte granting LaVigne [defednant] summary judgment on her structure loss claim as no party had moved on or briefed relative to this claim. We agree. “Although a court may not generally grant summary judgment sua sponte in the absence of a motion pursuant to CPLR 3212, in certain circumstances, a court may grant such relief, even if it is not demanded, so long as there is no substantial prejudice to the adverse party. In such cases, [this Court] require[s] that the court give notice to the parties that summary judgment is being considered as a remedy, so that they may develop evidence and offer proof in support of or in opposition to the motion” … . Here, although the court did ask questions regarding the structure loss claim at oral argument, we do not find that to be sufficient notice that summary judgment was being considered and, as such, the insurance company was substantially prejudiced … . … [I]t is clear from the record that the parties were not “deliberately charting a course for summary judgment” … , and in fact were quite surprised by the Supreme Court’s questions regarding summary judgment on this claim. Moreover, it appears from the record that the insurance company did not depose LaVigne. Collyer v LaVigne, 2022 NY Slip Op 01083, Third Dept 2-17-22