Opinion
No. CA 09-01643.
February 11, 2010.
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.
FEUERSTEIN SMITH, LLP, BUFFALO (MARK E. GUGLIELMI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAWRENCE A. SCHULZ, ORCHARD PARK, FOR DEFENDANT-RESPONDENT.
Present: Smith, J.P., Carni, Pine and Gorski, JJ.
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; see CPLR 3212 [a]; Coolidge Equities Ltd. v Falls Ct. Props. Co., 45 AD3d 1289).