In Shapiro v. Dwelling Managers, Inc., (92 AD2d 52, 52, 459 N.Y.S.2d 579 [1st Dept 1983]) the Court denied plaintiff's motion for judgment declaring that they are entitled to sublease or assign the lease to their apartment and directing the defendant landlord to consent in writing.
The Court stated that "plaintiff's motion, served with the summons and complaint, is essentially one for summary judgment asking for the full relief that the complaint asks...". Pursuant to CPLR § 3212(a), parties can not move for summary judgment before issue has been joined.
In Shapiro v. Dwelling Managers, the court noted that when the motion was made, issue had not been joined. Accordingly, the court denied the plaintiff's motion on procedural grounds. (Id).