New York Casualty Insurance v. Kushner

Appellate Division of the Supreme Court of New York

New York Casualty Insurance v. Kushner

309 A.D.2d 1235, 765 N.Y.S.2d 538, 2003 N.Y. App. Div. LEXIS 10069

Appellate Division of the Supreme Court of the State of New York·Decided October 2, 2003·Published·Cited by 1 cases

Opinion

Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered October 4, 2002, which granted defendant’s motion seeking partial summary judgment.

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 AD2d 825 [2002]; Nationwide Mut. Ins. Co. v Piper, 286 AD2d 903 [2001]). 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 NY2d 557, 562 [1980]; Friends of Animals v Associated, Fur Mfrs., 46 NY2d 1065, 1067 [1979]). Present — Pigott, Jr., P.J., Hurlbutt, Gorski and Lawton, JJ.

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Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered October 4, 2002, which granted defendant’s motion seeking partial summary judgment.

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 AD2d 825 [2002]; Nationwide Mut. Ins. Co. v Piper, 286 AD2d 903 [2001]). 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 NY2d 557, 562 [1980]; Friends of Animals v Associated, Fur Mfrs., 46 NY2d 1065, 1067 [1979]). Present — Pigott, Jr., P.J., Hurlbutt, Gorski and Lawton, JJ.

New York Casualty Insurance v. Kushner, 309 A.D.2d 1235, 765 N.Y.S.2d 538, 2003 N.Y. App. Div. LEXIS 10069 (N.Y. Ct. App. 2003).

Pincite

309 A.D.2d 1235 (New York Casualty Insurance v. Kushner) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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