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 search of the record reveals the existence of a potentially meritorious Statute of Limitations’ defense. Moreover, neither party submitted proof in evidentiary form to establish entitlement to judgment as a matter of law. That failure, which precludes the granting of summary judgment to defendant, likewise precludes the granting of summary judgment to plaintiff (see generally, Lough v City of Syracuse, 191 AD2d 1018, 1019; Rohr v Hoyt, 159 AD2d 980).
I would, therefore, modify the order by vacating that part of the order granting summary judgment to plaintiff. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.— Summary Judgment.) Present—Pine, J. P., Lawton, Wesley, Callahan and Davis, JJ.