Blidgen v. Estate of Everton A. , 868 N.Y.2d 545 ( 2008 )

The plaintiffs, in effect, sought summary judgment (see CPLR 3212) in connection with a claim based on a theory of constructive trust that had apparently never been pleaded in any complaint. The record contains no indication that any civil action or proceeding had ever been commenced (see CPLR 103 [b]; 304). Accordingly, there being no pending action or proceeding, the defendants’ motion should have been denied. Rivera, J.P, Dillon, Covello and McCarthy, JJ., concur.