Riddell v. Brown

Appeal from an order of the Supreme Court, Cattaraugus County (Larry M. Himelein, A.J.), entered July 5, 2005 in a personal injury action. The order granted the motion of defendant Donald Beaver, doing business as Beaver Dairy Farm, for summary judgment dismissing the complaint against him and denied plaintiffs’ cross motion for leave to supplement the bill of particulars.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion and reinstating the complaint against defendant Donald Beaver, doing business as Beaver Dairy Farm, and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action against Donald Beaver, doing business as Beaver Dairy Farm (defendant), and other defendants to recover damages for injuries they sustained when they struck an underground gas line, causing an explosion. It appears on the record before us that defendant failed to support his motion with a copy of the pleadings in the action. That failure requires denial of the motion, regardless of its merits (see CPLR 3212 [b]; Nationwide Mut. Ins. Co. v Piper, 286 AD2d 903 [2001]; Niles v County of Chautauqua, 285 AD2d 988, 989 [2001]). We therefore modify the order by denying the motion of defendant and reinstating the complaint against him. Present — Pigott, Jr., P.J., Kehoe, Martoche, Smith and Pine, JJ.