Opinion
338 CA 14-01305
03-27-2015
Thomas J. TUDISCO, Plaintiff–Appellant, v. Dawnmarie MINCER, Defendant–Respondent.
Beckerman And Beckerman, LLP, Rochester (Steven M. Beckerman of Counsel), for Plaintiff–Appellant. Barrett Greisberger, LLP, Webster (Mark M. Greisberger Of Counsel), for Defendant–Respondent.
Beckerman And Beckerman, LLP, Rochester (Steven M. Beckerman of Counsel), for Plaintiff–Appellant.
Barrett Greisberger, LLP, Webster (Mark M. Greisberger Of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM:
Plaintiff commenced this action seeking to enforce an alleged oral agreement concerning the purchase of residential property. Several months after defendant filed an answer, defendant moved for summary judgment dismissing the complaint pursuant to CPLR 3211(a)(5) and CPLR 3212 on the ground that the alleged agreement was not enforceable because of the statute of frauds (see General Obligations Law § 5–703[1] ). Supreme Court granted defendant's motion in part and dismissed the third and fourth causes of action. Plaintiff contends that defendant's motion should have been treated as a CPLR 3212 motion for summary judgment. We agree with that contention. The parties' course of litigation shows that they were “deliberately charting a summary judgment course” and treated the motion as a CPLR 3212 motion for summary judgment (Nowacki v. Becker, 71 A.D.3d 1496, 1497, 897 N.Y.S.2d 560 [4th Dept.2010] ).
We agree with plaintiff that the court erred in granting defendant's motion in part. “The failure of [defendant] to support [her] motion with a copy of the pleadings requires denial of the motion, regardless of the merits of the motion” (D.J. Enters. of WNY v. Benderson, 294 A.D.2d 825, 825, 740 N.Y.S.2d 903 ; see CPLR 3212[b] ; Notaro v. Bison Constr. Corp., 32 A.D.3d 1218, 1219, 821 N.Y.S.2d 715 ). In light of our determination, we do not address plaintiff's remaining contentions.
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated in its entirety.