CPLR R. 3212 Motion for summary judgment
Roche v Claverack Coop. Ins. Co., 2009 NY Slip Op 01390 (App. Div., 3d, 2009)
Initially, Supreme Court did not err in considering the motion for
summary judgment despite defendants' failure to first serve an answer.
While a motion for summary judgment is not authorized by statute until
issue has been joined (see CPLR 3212 [a]; Berle v Buckley, 57 AD3d 1276,
1277 [2008]), the court could consider the motion because "the parties
charted their own procedural course and treated defendants' summary
judgment motion as if issue had indeed been joined" (Ryan v Bettiol, 211 AD2d 844, 845 [1995]; see Kline v Town of Guilderland, 289 AD2d 741, 741 n [2001]; cf. Yule v New York Chiropractic Coll., 43 AD3d 540, 541-542 [2007]).
The bold is mine.
bruteforcelawyer.com 