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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 11, 2010

StatusPublished

Cited by3 cases

This text of 70 A.D.3d 1382 (Estate of Jason v. Herdman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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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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—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.

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Bluebook (online)

70 A.D.3d 1382, 893 N.Y.S.2d 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-jason-v-herdman-nyappdiv-2010.

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