RIDDELL v. Donald Beaver, doing business as Beaver Dairy Farm, Defendant-Respondent. (Appeal No. 2.) (2006)

Supreme Court, Appellate Division, Fourth Department, New York.

Dennis RIDDELL and Rodney L. Brown, Plaintiffs-Appellants, v. June A. BROWN, et al., Defendants, Donald Beaver, doing business as Beaver Dairy Farm, Defendant-Respondent. (Appeal No. 2.)

Decided: September 22, 2006

PRESENT: PIGOTT, JR., P.J., KEHOE, MARTOCHE, SMITH, AND PINE, JJ.

Fessenden, Laumer & DeAngelo, Jamestown (J. Kevin Laumer of Counsel), for Plaintiffs-Appellants. Hagerty & Brady, Buffalo (Michael A. Brady of Counsel), for Defendant-Respondent.

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 A.D.2d 903, 731 N.Y.S.2d 409; Niles v. County of Chautauqua, 285 A.D.2d 988, 989, 727 N.Y.S.2d 679). We therefore modify the order by denying the motion of defendant and reinstating the complaint against him.

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:

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