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DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT).

The Second Department noted that a defendant who has not yet served an answer cannot move for summary judgment:

A motion for summary judgment may only be made after joinder of issue (see CPLR 3212[a]). Where, as here, it is conceded that the defendant had not served an answer before moving for summary judgment, issue was not joined and the defendant was precluded from obtaining summary judgment … . The requirement that a motion for summary judgment may not be made before issue is joined (see CPLR 3212[a]) “is strictly adhered to” … . Cremosa Food Co., LLC v Amella, 2018 NY Slip Op 06077, Second Dept 9-19-18

CIVIL PROCEDURE (DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT))/CPLR 3212 (DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, (DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT))

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NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF... QUESTION OF FACT WHETHER THE INADEQUATE HEIGHT OF A GUARDRAIL ALONG THE STAIRWELL...