Matter of Estate of Jason v Herdman

2010 NY Slip Op 01171 [70 AD3d 1382]

February 11, 2010

Appellate Division, Fourth Department

As corrected through Wednesday, March 31, 2010

In the Matter of the Estate of Eugene Jason, Deceased, Appellant, vLisa Herdman, Now Known as Lisa Krue, Respondent.

—[*1]Feuerstein & Smith, LLP, Buffalo (Mark E. Guglielmi of counsel), forplaintiff-appellant.

Lawrence A. Schulz, Orchard Park, for defendant-respondent.

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), enteredDecember 30, 2008 in a declaratory judgment action. The order denied the motion of plaintiff forsummary 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 summonsand complaint. Simultaneously, plaintiff filed an order to show cause seeking the samedeclaratory relief. We deem the order to show cause as constituting a motion for summaryjudgment, and we conclude that Supreme Court properly denied the motion. " 'A motion forsummary judgment may not be made before issue is joined . . .[,] and [the courtshave] 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.