A.D. Bedell Co. v. New York State Department of Taxation & Finance

—Judgment and order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting plaintiffs’ motion for summary judgment. That motion was instituted by order to show cause on the same date that plaintiffs purportedly commenced the action. Issue had not been joined, and thus the motion was premature (see, CPLR 3212 [a]; Matter of Rine v Higgins, 244 AD2d 963, 964). Moreover, plaintiffs failed to submit evidentiary material negating all triable issues of fact warranting judgment in their favor as a matter of law. The sole affidavit by a person having first-hand knowledge of the events presented general facts concerning only two of the four seizures of cartons of cigarettes allegedly conducted by defendant’s officers. Thus, with respect to two of the seizures, plaintiffs submitted no evidentiary material in support of their motion. With respect to the remaining seizures, plaintiffs supporting affidavit fails to state sufficient material facts to warrant summary 998 relief. Plaintiffs erroneously rely on the decision of Supreme Court in New York State Dept, of Taxation & Fin. v Bramhall (172 Misc 2d 934); Bramhall was reversed by this Court (235 AD2d 75, appeal dismissed 91 NY2d 849). They also rely on the repeal by defendant, effective April 29, 1998, of its regulations concerning the collection of sales and excise taxes on cigarettes and tobacco products. That repeal, which took effect more than 11 months after the seizure, has no effect on the validity of the seizure. Thus, the court should have denied the motion for summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324-325). We note in addition that the court erred in granting judgment in this declaratory judgment action without declaring the rights of the parties (see, e.g., Matter of Pless v Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047; Matter of Ranieri v Argust, 254 AD2d 771). (Appeal from Judgment and Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Denman, P. J., Green, Hayes, Callahan and Balio, JJ.