Opinion
94956.
Decided and Entered: April 22, 2004.
Appeal from an order of the Supreme Court (Demarest, J.), entered February 11, 2003 in Franklin County, which, inter alia, denied third-party defendant's cross motion for summary judgment dismissing the third-party complaint commenced by defendant Jerry J. Wood.
Costello, Cooney Fearon P.L.L.C., Syracuse (Nicole M. Marlow of counsel), for third-party defendant-appellant.
Poissant, Nichols Grue P.C., Malone (Thomas A. Grue of counsel), for respondents.
John A. Piasecki, Malone, for defendant and third-party plaintiff-respondent.
Before: Mercure, J.P., Peters, Rose, Lahtinen and Kane, JJ.
MEMORANDUM AND ORDER
Plaintiff Brenda K. Greene suffered injuries when her car was struck by defendant Jerry J. Wood's pickup truck in September 2000. Defendant Metropolitan Property and Casualty Insurance Company (hereinafter Met Life), Wood's insurer, denied any liability, claiming that Wood's truck was not a covered vehicle under his insurance policy. Wood had purchased insurance for the truck through third-party defendant, James R. Armstrong, who issued a temporary, 60-day insurance card for the truck in February 2000, but failed to contact Met Life to add the truck to Wood's policy.
Following the accident, plaintiffs commenced this personal injury action against defendants, seeking damages from Wood and a declaratory judgment determining the obligations of Met Life. Both Wood and Met Life commenced separate third-party actions against Armstrong. As relevant here, Armstrong cross-moved for summary judgment against Wood, and Supreme Court denied the cross motion. Armstrong appeals and we now affirm.
Generally, the movant's failure to include a copy of the pleadings in the papers supporting a motion for summary judgment "require[s] summary denial of the motion" (Welton v. Drobnicki, 298 A.D.2d 757, 757;see CPLR 3212 [b]; Bonded Concrete v. Town of Saugerties, 3 A.D.3d 729, 730). While such a procedural defect may be overlooked if the record is "sufficiently complete" (General Motors Acceptance Corp. v. Albany Water Bd., 187 A.D.2d 894, 895 n [1992]; Stiber v. Cotrone, 153 A.D.2d 1006, 1007, lv denied 75 N.Y.2d 703; Ayer v. Sky Club, 70 A.D.2d 863, 864, appeals dismissed 48 N.Y.2d 705, 755), Wood's third-party complaint is absent from the record. By omitting Wood's third-party complaint, Armstrong "failed to satisfy [his] initial burden on the motion, thereby obviating any issue as to the sufficiency of the papers submitted in opposition thereto" (Welton v. Drobnicki, supra at 757; see Halpern, Carlisle, Metzler and Doyle, Civil Pretrial Proceedings in New York § 26:32, at 26-14; cf. Trump Vil. Section 3 v. New York State Hous. Fin. Agency, 307 A.D.2d 891, 894 n 3 [2003], lv denied 1 N.Y.3d 503; Stiber v. Cotrone, supra at 1007). Therefore, Armstrong's cross motion should have been denied without prejudice to renewal (see Welton v. Drobnicki, supra at 757).
Peters, Rose, Lahtinen and Kane, JJ., concur.
ORDERED that the order is affirmed, without costs.