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In the Matter of the ESTATE OF EUGENE JASON, Deceased, Appellant, v. LISA HERDMAN, NOW Known as LISA KRUE, Respondent.

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).

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IN RE JASON
(Feb 11, 2010)