Matter of Estate of Jason v Herdman

Matter of Estate of Jason v Herdman 2010 NY Slip Op 01171 [70 AD3d 1382] February 11, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

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

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

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

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.