On January 27, 2022, the First Department issued a decision in SHG Resources, LLC v. SYTR Real Estate Holdings LLC, 2022 NY Slip Op. 00525, holding that a motion for summary judgment may not be brought before issue is joined, explaining:
The Court of Appeals has noted that the rule barring a pre-joinder motion for summary judgment is strictly applied. While CPLR 3211(c) permits the court, on notice to the parties, to treat a motion to dismiss as a motion for summary judgment before issue is joined, that is not the case here, where SHG moved directly for summary judgment; thus, a motion for summary judgment brought before a defendant has answered the complaint is premature and must be denied.
SHG asserts that this is an exceptional case because it was one where both sides make it unequivocally clear that they are laying bare their proof and deliberately charting a summary judgment course. Four Seasons, however, did not deal with a CPLR 3212 motion, as here.
(Internal quotations and citations omitted).