Supreme Court, Appellate Division, Second Department, New York.
BRIDGEHAMPTON NATIONAL BANK, etc., et al., Plaintiffs-Respondents,v.Valentine SCHAFFNER, et al., Defendants Third-Party Plaintiffs-Appellants, etal., Defendant;Richard Pellicane, et al., Third-Party Defendants-Appellants.
Feb. 2, 1998.
Anthony T. Conforti, Hauppauge (L. Kevin Sheridan, of counsel), for third-party defendants-appellants.
Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum, of counsel), for defendants third-party plaintiffs-appellants.
*351 In an action pursuant to RPAPL article 15 to determine title to certain real property, (1) the third-party defendants, RichardPellicane, Clarence R. Banks, and Foster H. Corwith appeal, *352 as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated April 9, 1996, as granted the plaintiffs' motion for summary judgment, and (2) the defendants third-party plaintiffs, Valentine Schaffner, Ticor Title Guarantee Company, and Ticor Insurance Company, separately appeal, as limited by their brief, from so much of the same order as failed to search the record and award them summary judgment on the third-party complaint.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
In an action pursuant to RPAPL 1501 to determine claims to real property, the plaintiffs **939 bear the burden of proof to establish title (see, Town of North Hempstead v. Bonner, 77 A.D.2d 567, 429 N.Y.S.2d 739). The plaintiffs are obligated to affirmatively prove that they hold legal title to the property, which is not satisfied merely by pointing to weaknesses in the defendants' title (see, Town of North Hempstead v. Bonner, supra, at 568, 429 N.Y.S.2d 739).
At bar, the plaintiffs conclusively established their claim of title to the subject property. The defendants failed to demonstrate the existence of triable issues of fact with respect to the plaintiffs' claim of title and thus the Supreme Court's grant of summary judgment in favor of the plaintiffs was appropriate (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595, 404 N.E.2d 718).
In addition, the Supreme Court properly continued the third-party action. The fact that a plaintiff has moved for summary judgment on the complaint does not authorize the Supreme Court to search the record in the third-party action and to grant summary judgment pursuant to CPLR 3212(b) in that action (see, Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 654 N.Y.S.2d 335, 676 N.E.2d 1178; Mercedes-Benz Credit Corp. v. Dintino, 198 A.D.2d 901, 902, 604 N.Y.S.2d 451; Sutton v. Cobb, 50 A.D.2d 995, 996, 377 N.Y.S.2d 236).
The parties' remaining contentions are without merit.
MILLER, J.P., and PIZZUTO, GOLDSTEIN and FLORIO, JJ., concur.
667 N.Y.S.2d 938 (Mem), 247 A.D.2d 351, 1998 N.Y. Slip Op. 01142
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