Estate of Jason v. Herdman

Appellate Division of the Supreme Court of New York

Estate of Jason v. Herdman

70 A.D.3d 1382, 893 N.Y.S.2d 782

Appellate Division of the Supreme Court of the State of New York·Decided February 11, 2010·Published·Cited by 3 cases

Opinion

—Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered December 30, 2008 in a declaratory judgment action. The order denied the motion of plaintiff for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this declaratory judgment action by filing a summons and complaint. Simultaneously, plaintiff filed an order to show cause seeking the same declaratory relief. We deem the order to show cause as constituting a motion for summary judgment, and we conclude that Supreme Court properly denied the motion. “ ‘A motion for summary judgment may not be made before issue is joined . . .[,] and [the courts have] strictly adhered to [that requirement]’ ” (Ward v Guardian Indus. Corp., 17 AD3d 1100, 1101 [2005], quoting City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]; see CPLR 3212 [a]; Coolidge Equities Ltd. v Falls Ct. Props. Co., 45 AD3d 1289 [2007]). Present—Smith, J.P., Carni, Pine and Gorski, JJ.

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—Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered December 30, 2008 in a declaratory judgment action. The order denied the motion of plaintiff for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this declaratory judgment action by filing a summons and complaint. Simultaneously, plaintiff filed an order to show cause seeking the same declaratory relief. We deem the order to show cause as constituting a motion for summary judgment, and we conclude that Supreme Court properly denied the motion. “ ‘A motion for summary judgment may not be made before issue is joined . . .[,] and [the courts have] strictly adhered to [that requirement]’ ” (Ward v Guardian Indus. Corp., 17 AD3d 1100, 1101 [2005], quoting City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]; see CPLR 3212 [a]; Coolidge Equities Ltd. v Falls Ct. Props. Co., 45 AD3d 1289 [2007]). Present—Smith, J.P., Carni, Pine and Gorski, JJ.

Estate of Jason v. Herdman, 70 A.D.3d 1382, 893 N.Y.S.2d 782 (N.Y. Ct. App. 2010).

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