Opinion
CA 03-00330
October 2, 2003.
Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered October 4, 2002, which granted defendant's motion seeking partial summary judgment.
LAW OFFICE OF ROY A. MURA, BUFFALO (SUSAN H. SADINSKY OF COUNSEL), FOR PLAINTIFF-APPELLANT.
ANDREWS, BERNSTEIN MARANTO, LLP, BUFFALO (ROBERT J. MARANTO, JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HURLBUTT, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.
Memorandum:
Supreme Court erred in granting defendant's motion seeking partial summary judgment. As plaintiff correctly contends, the court should have denied the motion based on the failure of defendant to support his motion with a copy of the answer, regardless of the merits of the motion ( see CPLR 3212 [b]; D.J. Enters. of WNY v Benderson, 294 A.D.2d 825; Nationwide Mut. Ins. Co. v. Piper, 286 A.D.2d 903). In any event, defendant failed to submit the requisite evidentiary proof in admissible form in support of his motion and thus failed to meet his initial burden ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067).