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Estate of Jason v. Herdman

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


February 11, 2010

IN THE MATTER OF THE ESTATE OF EUGENE JASON, DECEASED, APPELLANT,
v.
LISA HERDMAN, NOW KNOWN AS LISA KRUE, RESPONDENT.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 31, 2010

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.

20100211

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