IN RE: THE ESTATE OF EUGENE JASON (2010)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: THE ESTATE OF EUGENE JASON, DECEASED, PLAINTIFF-APPELLANT, v. LISA HERDMAN, NOW KNOWN AS LISA KRUE, DEFENDANT-RESPONDENT.

CA 09-01643

Decided: February 11, 2010

PRESENT: SMITH, J.P., CARNI, PINE, AND GORSKI, JJ.

FEUERSTEIN & SMITH, LLP, BUFFALO (MARK E. GUGLIELMI OF COUNSEL), FOR PLAINTIFF-APPELLANT. LAWRENCE A. SCHULZ, ORCHARD PARK, FOR DEFENDANT-RESPONDENT.

MEMORANDUM AND ORDER

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, quoting City of Rochester v. Chiarella, 65 N.Y.2d 92, 101; see CPLR 3212[a]; Coolidge Equities Ltd. v. Falls Ct. Props. Co., 45 AD3d 1289).

Patricia L. Morgan

Clerk of the Court

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