I respectfully dissent. A search of this record indicates that defendant is entitled to summary judgment. The Appellate Division has the authority to grant such relief pursuant to CPLR 3212 (subd [b]) even in the absence of any appeal by a nonmoving party (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112). H Special Term’s decision assumes that defendant breached her contract with plaintiff. The moving papers and supporting documents do not bear this out. Defendant could not be in breach of her contract unless performance was due by her and all conditions had been satisfied (see Restatement, Contracts 2d, § 235, Comment b). Reference to the original contract indicates that defendant was required “to accept” employment with plaintiff “or with such local public social services agency as the New York State Department of Social Services may designate or approve”. The contract did not, as urged by plaintiff, require defendant “to seek” employment. No employment was ever offered to defendant. The conditions imposed on defendant in granting her a deferment in August, 1971 also did not require defendant to seek employment. Plaintiff unilaterally attempted to change the terms of the contract by de*992manding that defendant seek employment. Defendant never undertook the obligation which plaintiff claims she breached, that is, agree to seek employment. Without a breach of contract by defendant, plaintiff has no cause for action, and defendant is entitled to a judgment of dismissal.