Opinion
CAE 02-02281
October 31, 2002.
Appeal from an order of Supreme Court, Erie County (Michalek, J.), entered October 9, 2002, which, inter alia, denied plaintiff's request for "accelerated judgment."
EDWARD C. COSGROVE, BUFFALO, AND WIGGIN DANA LLP, NEW HAVEN, CONNECTICUT, FOR PLAINTIFF-APPELLANT.
MICHAEL B. RISMAN, CORPORATION COUNSEL, BUFFALO (DAVID J. STATE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS CITY OF BUFFALO, ANTHONY M. MASIELLO, MAYOR OF CITY OF BUFFALO, AND COMMON COUNCIL OF CITY OF BUFFALO.
FREDERICK A. WOLF, COUNTY ATTORNEY, BUFFALO (ANDREW B. ISENBERG OF COUNSEL), FOR DEFENDANTS-RESPONDENTS LAURENCE F. ADAMCZYK, RALPH M. MOHR, COMMISSIONERS OF ERIE COUNTY BOARD OF ELECTIONS, AND ERIE COUNTY BOARD OF ELECTIONS.
HARTER, SECREST EMERY LLP, BUFFALO (JERAULD E. BRYDGES OF COUNSEL), FOR ROSEMARIE LO TEMPIO, AMICUS CURIAE.
PRESENT: HAYES, J.P., WISNER, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action seeking a judgment declaring that both Local Law No. 8 and a redistricting resolution are invalid and permanently enjoining their implementation. Local Law No. 8 and the redistricting resolution were each passed by the City of Buffalo (City) Common Council (Council) on July 23, 2002 and approved by the Mayor of the City on August 22, 2002. The local law amends the City Charter (Charter) by reducing the size of the Council from 13 to 9 members, accomplished by eliminating the seats of the Council President and three at-large members, all of whom are elected City-wide, while preserving the seats of those Council members elected district-wide. The redistricting resolution adopts a certain redistricting map redefining the boundaries of the City's nine councilmanic districts in furtherance of the decennial reapportionment process. The reduction in the size of the Council effectuated by Local Law No. 8 is the subject of a mandatory referendum pursuant to Municipal Home Rule Law § 23(2)(b) and (e), and the measure is on the ballot for the upcoming election.
Insofar as pertinent to this appeal, the complaint alleges that Local Law No. 8 and the redistricting resolution each violate Municipal Home Rule Law § 20(4); that Local Law No. 8 and the redistricting resolution, considered together, fail to constitute a "plan," thus violating section 18-14 of the Charter; and that Local Law No. 8 lacked the supermajority vote necessary to place the issue on the ballot as a referendum, thus violating section 23-5 of the Charter. Plaintiff contends on appeal that Supreme Court erred in denying his request for "accelerated judgment" on the complaint pursuant to "Article 32 of the CPLR" and his motion for a preliminary injunction against the implementation of both Local Law No. 8 and the redistricting resolution and, more particularly, against the holding of the imminent City-wide referendum. At oral argument, plaintiff withdrew his contention concerning the preliminary injunction. Thus, we do not reach that contention.
The court properly denied plaintiff's request for "accelerated judgment." CPLR 3212 (a) provides that a "party may move for summary judgment in any action, after issue has been joined." "[T]here is strict adherence to that requirement" ( Matter of Rine v. Higgins, 244 A.D.2d 963, 964; see City of Rochester v. Chiarella, 65 N.Y.2d 92, 101), and "[a] court may not entertain a motion for summary judgment prior to joinder of issue" ( Gormel v. Prudential Ins. Co. of Am., 201 A.D.2d 950, 951, lv dismissed 83 N.Y.2d 1000; see Fargo v. Watertown Educ. Assn., 175 A.D.2d 633). Here, defendants have not yet answered the complaint, and indeed their answering time had not yet begun to run when plaintiff requested "accelerated judgment" by his order to show cause, which he obtained before serving the complaint ( see Jann v. Cassidy, 265 A.D.2d 873, 874). Plaintiff's request thus was premature ( see Chiarella, 65 N.Y.2d at 101; C.S. Behler, Inc. v. Daly Zilch, 277 A.D.2d 1002, 1003; A.D. Bedell Co. v. New York State Dept. of Taxation Fin., 255 A.D.2d 997; Pharmhealth Infusion v. Rohm Servs. Corp. [appeal No. 1] , 249 A.D.2d 950; Park Ridge Hosp. v. Richardson, 175 A.D.2d 631; Delpopolo v. Zanghi, 140 A.D.2d 930, 932).
Plaintiff contends that summary judgment may be granted pursuant to CPLR 3211 (c), which authorizes conversion of a motion to dismiss to one for summary judgment "[w]hether or not issue has been joined." The requisite notice of the conversion of the cross motion was not given to the parties by the court pursuant to CPLR 3211 (c) ( see Lockheed Martin Corp. v. Aatlas Commerce, 283 A.D.2d 801, 802). The court therefore lacked power to search the record and grant summary judgment to plaintiff, absent any indication that defendants charted or consented to a summary judgment course ( see Mihlovan v. Grozavu, 72 N.Y.2d 506, 508; Lockheed Martin Corp., 283 A.D.2d at 802-803; cf. Tops Mkts. v. SR Co. of W. Seneca, 275 A.D.2d 988; Village of Webster v. Monroe County Water Auth., 269 A.D.2d 781, 782). Under the circumstances, defendants must be given the opportunity to answer the complaint and to make an appropriate record on the summary judgment issue ( see Mihlovan, 72 N.Y.2d at 508; Bacchiocchi v. Ranch Parachute Club, 273 A.D.2d 173, 174).