Saba v. Utica Fire Insurance

176 A.D.2d 1212

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1991
• Docket: Appeal No. 1
• Status: Published

Opinion

— Order unanimously modified on law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court erred in granting plaintiff’s motion for partial summary judgment and directing plaintiff to submit to an examination under oath pursuant to the insurance policy. When plaintiff commenced this declaratory judgment action, he served, along with a summons and complaint, an order to show cause seeking an immediate declaration of rights and partial summary judgment. No basis exists in the Civil Practice Law and Rules for such a motion before issue has been joined. Thus, it should have been denied (see, e.g., Fargo v Watertown Educ. Assn., 175 AD2d 633). Additionally, the trial court erred in granting partial summary judgment based on defendant’s settlement offer that had been made and rejected prior to plaintiff’s commencement of the action. In response to that motion, defense counsel served an opposing affirmation wherein he cross-moved to dismiss plaintiff’s complaint. Because no notice of cross motion was ever served, the motion was procedurally defective and was properly denied (see, CPLR 2215). We therefore modify the order by deleting the first two ordering paragraphs and deny plaintiff’s motion in all respects. (Appeal from Order of Supreme Court, Onondaga County, Miller, J. — Partial Summary Judgment.) Present — Doerr, J. P., Boomer, Green, Lawton and Davis, JJ.