BEDELL CO INC v. NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE (1998)

 Supreme Court erred in granting plaintiffs' motion for summary judgment.   That motion was instituted by order to show cause on the same date that plaintiffs purportedly commenced the action.   Issue had not been joined, and thus the motion was premature (see, CPLR 3212[a];  Matter of Rine v. Higgins, 244 A.D.2d 963, 964, 665 N.Y.S.2d 165).   Moreover, plaintiffs failed to submit evidentiary material negating all triable issues of fact warranting judgment in their favor as a matter of law.   The sole affidavit by a person having first-hand knowledge of the events presented general facts concerning only two of the four seizures of cartons of cigarettes allegedly conducted by defendant's officers.   Thus, with respect to two of the seizures, plaintiffs submitted no evidentiary material in support of their motion.   With respect to the remaining seizures, plaintiff's supporting affidavit fails to state sufficient material facts to warrant summary relief.   Plaintiffs erroneously rely on the decision of Supreme Court in New York State Dept. of Taxation & Fin. v. Bramhall, 172 Misc.2d 934, 660 N.Y.S.2d 329;  Bramhall was reversed by this Court (235 A.D.2d 75, 667 N.Y.S.2d 141, appeal dismissed 91 N.Y.2d 849, 667 N.Y.S.2d 684, 690 N.E.2d 493).   They also rely on the repeal by defendant, effective April 29, 1998, of its regulations concerning the collection of sales and excise taxes on cigarettes and tobacco products.   That repeal, which took effect more than 11 months after the seizure, has no effect on the validity of the seizure.   Thus, the court should have denied the motion for summary judgment (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572).

We note in addition that the court erred in granting judgment in this declaratory judgment action without declaring the rights of the parties (see, e.g., Matter of Pless v. Town of Royalton, 185 A.D.2d 659, 660, 585 N.Y.S.2d 650, affd. 81 N.Y.2d 1047, 601 N.Y.S.2d 455, 619 N.E.2d 392;  Matter of Ranieri v. Argust, 254 A.D.2d 771, 679 N.Y.S.2d 765).

Judgment and order unanimously reversed on the law without costs and motion denied.

MEMORANDUM: