        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

338
CA 14-01305
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THOMAS J. TUDISCO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

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.


     Appeal from an order of the Supreme Court, Monroe County (J.
Scott Odorisi, J.), entered September 30, 2013. The order, insofar as
appealed from, granted in part the motion of defendant for summary
judgment dismissing the complaint and dismissed the third and fourth
causes of action.

     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.

     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 AD3d 1496, 1497 [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 AD2d 825, 825; see CPLR 3212 [b]; Notaro v Bison
Constr. Corp., 32 AD3d 1218, 1219). In light of our determination, we
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                                                         CA 14-01305

do not address plaintiff’s remaining contentions.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
