On January 15, 2025, Justice Reed of the New York County Commercial Division issued a decision in Mermelstein v. Waspit Group, Inc., 2025 NY Slip Op. 50027(U) [84 Misc 3d 1263(A)], holding that a plaintiff may not move for summary judgment before the defendants answer the complaint, explaining:
It is fundamental that a court may not grant summary judgment prior to joinder of issue. The requirement is strictly adhered to. Where a defendant has not served an answer, issue is not joined and plaintiff is precluded from obtaining summary judgment.
Here, where defendants have not answered, plaintiffs should not have submitted a motion for summary judgment. Justice Edmead ordered that plaintiffs’ motion papers are deemed to be the complaint in the plenary action, but did not state that defendants’ opposition papers were to be deemed to be an answer. Instead, Justice Edmead granted defendants thirty days to answer once plaintiffs filed a notice of entry. At the time of the instant motion, however, plaintiffs had not filed said notice of entry, and therefore defendants’ obligation to file an answer had not been triggered. Summary judgment is therefore inappropriate at this juncture.
(Internal quotations and citations omitted).