WIDER v. HELLER (2005)

In an action to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Covello, J.), dated November 30, 2004, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied without prejudice to renewal upon proper papers, and the complaint is reinstated.

As accurately observed by the plaintiffs in the Supreme Court, the defendants failed to append a complete set of the pleadings to their motion for summary judgment as required by CPLR 3212(b).  Accordingly, denial of the motion was required (see Sted Tenants Owners Corp. v. Chumpitaz, 5 A.D.3d 663, 774 N.Y.S.2d 718;  Bonded Concrete v. Town of Saugerties, 3 A.D.3d 729, 770 N.Y.S.2d 786;  Matter of Williams v. County of Genesee, 289 A.D.2d 1026, 735 N.Y.S.2d 453;  Nationwide Mut. Ins. Co. v. Piper, 286 A.D.2d 903, 731 N.Y.S.2d 409;  Deer Park Assoc. v. Robbins Store, 243 A.D.2d 443, 665 N.Y.S.2d 286;  Lawlor v. County of Nassau, 166 A.D.2d 692, 561 N.Y.S.2d 644).   Under the circumstances of this case, we conclude that the denial of the motion should have been without prejudice to renewal upon proper papers (see Greene v. Wood, 6 A.D.3d 976, 775 N.Y.S.2d 192;  Welton v. Drobnicki, 298 A.D.2d 757, 749 N.Y.S.2d 288).

In view of the foregoing, we do not consider the parties' contentions with regard to the merits of the motion.