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ESTATE OF DEENA P. LOWENBERG, A/K/A DEENA LOWENBERG, A/K/A DEENA PEARL LOWENBERG, A/K/A DEENA PEARL, Deceased

ESTATE OF DEENA P. LOWENBERG, A/K/A DEENA LOWENBERG, A/K/A DEENA PEARL LOWENBERG, A/K/A DEENA PEARL, Deceased (16/1256) — In this probate proceeding, the Respondent Yael Lowenberg, a daughter of the Decedent, moves, preobjection, to dismiss this proceeding on the claimed basis that this court lacks subject matter jurisdiction to probate the testamentary instrument in question, since the Decedent was not a New York domiciliary at the time of her death (See, SCPA §204).

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ESTATE OF DEENA P. LOWENBERG, A/K/A DEENA LOWENBERG, A/K/A DEENA PEARL LOWENBERG, A/K/A DEENA PEARL, Deceased (16/1256) — In this probate proceeding, the Respondent Yael Lowenberg, a daughter of the Decedent, moves, preobjection, to dismiss this proceeding on the claimed basis that this court lacks subject matter jurisdiction to probate the testamentary instrument in question, since the Decedent was not a New York domiciliary at the time of her death (See, SCPA §204).

The Respondent has not identified in the moving papers or memorandum of law the procedural posture of her motion. In particular, there is no indication whether dismissal is being sought pursuant to CPLR 3211 or CPLR 3212. Although a motion for summary judgment is not permitted until joinder of issue (CPLR 3212[a]), where the parties chart their own procedural course the court can treat the motion as if issue had been joined (See, Roche v. Claverack Coop. Ins. Co., 59 AD3d 914). Here it is apparent from the parties’ submission of affidavits and documentary evidence in support of and in opposition to the motion that they have elected to proceed as if this were a motion for summary judgment.

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