Opinion
February 20, 1957
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, ROBERT V. SANTANGELO, J.
Sidney Orenstein for appellant.
Saul Friedberg for respondent.
The papers in opposition to the motion to dismiss the complaint pursuant to rule 107 of the Rules of Civil Practice failed to present the document or written memorandum relied upon by plaintiff to satisfy the Statute of Frauds. Moreover such alleged document or memorandum was not produced before the court below either physically or by a copy thereof and appears nowhere in the record here. The mere statement of plaintiff that a writing sufficient to satisfy the Statute of Frauds exists, is not enough to defeat a motion to dismiss under subdivision 7 of rule 107 of the Rules of Civil Practice. It is incumbent upon the party opposing such a motion to produce the writing or explain the failure to do so ( Webb Knapp v. United Cigar-Whelan Stores Corp., 276 App. Div. 583). Plaintiff having failed in that respect the motion to dismiss below should have been granted.
The order should be reversed, with $10 costs, and motion granted.
HOFSTADTER, STEUER and AURIELIO, JJ., concur.
Order reversed, etc.