New York Casualty Insurance v. Kushner , 765 N.Y.S.2d 538 ( 2003 )

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.