By notice of motion filed on April 13, 2007, defendant Sterling National Bank (hereinafter Sterling) moves pursuant to CPLR §3212 under motion sequence number seven for summary judgment dismissing the complaint.

By notice of cross motion filed on May 21, 2007, under motion sequence number eight plaintiffs oppose Sterling's motion and seeks an order directing Sterling to appear for a deposition and to comply with plaintiffs' discovery demands.

Sterling's motion papers consist of an affirmation of counsel; affidavits of David Azar and Igor Katsman, and five annexed exhibits. David Azar is a member and manager Republic Capital Group, LLC. Igor Katsman is a check broker. Exhibit A is a check referenced in Katsman's affidavit. The remaining exhibits are referenced in the affirmation of Sterling's counsel. Exhibit B is the summons and verified complaint in the instant action. Exhibit C is Sterling's verified answer. Exhibits D is Sterling's interrogatories and document requested form the plaintiffs. Exhibit E is plaintiffs' response to Sterling's interrogatories.

Plaintiffs' cross motion consists of an affidavit of plaintiff Lewis R. Brestin, an affirmation of plaintiffs' counsel and two annexed exhibits, namely, the summons and complaint and a memorandum of law. Plaintiffs' counsel in paragraph nine of his affirmation references an order of this court, annexed as exhibit B, which directed that party depositions occur by March 15, 2007. He alleges that Sterling has not cooperated with discovery contrary to the order. The referenced order, however, is not annexed. [*2]

The affirmation of Sterling's counsel provides, among other things, a procedural history of the instant action. The procedural history does not state when or whether a note of issue has been filed. The eighth paragraph states that this court pursuant to a stipulation and order filed on May 15, 2006, consolidated the instant action with another action in Kings County Supreme Court under index number 6103-06 entitled United Factoring LLC and Zalman Klein v. Community Capital Bank (hereinafter the consolidated action).

McKinney's CPLR Rule 2214 provides as follows:

Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.

McKinney's CPLR Rule 3214(b) provides as follows:

Stay of disclosure. Service of a notice of motion under rule 3211, 3212 or section 3213 stays disclosure until determination of the motion unless the court orders otherwise. If the motion is based solely on the defense that the summons and complaint, summons with notice, or notice of petition and petition was not properly served, disclosure shall not be stayed unless the court orders otherwise.

It is noted that Sterling did not provide information on when or whether a note of issue has been filed in this action. This information is crucial in determining whether the motion for summary judgment is timely in accordance with Rule 13 of the Uniform Civil Term Rules for Kings County and CPLR § 3212(a).

A motion for summary judgment shall be supported by a copy of the pleadings (CPLR § Rule 3212[b]). "The pleadings" means "a complete set of the pleadings" (Wider v. Heller, 24 AD3d 433 [2nd Dept 2005], or "all the pleadings."(Welton v. Drobniki, 298 AD2d 757 [3rd Dept 2002]) Sterling has not included a copy of the pleadings of the consolidated action and, consequently, has not met its initial burden on the motion, thereby obviating any issue as to the sufficiency of the papers submitted in opposition thereto (Welton v. Drobniki, 298 AD2d 757 [3rd Dept 2002]). Although plaintiffs did not raise this deficiency in opposition to the motion, the requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, the motion must be denied on this basis alone (Thompson v. Foreign Cars Center, Inc. et al., 40 AD3d 965 [2nd Dept 2007]; see also Matsyuk v. Konkalipos, 35 AD3d 675 [2nd Dept 2006]). The denial, however, is without prejudice to renewal (Green v. Wood, 6 AD3d 976 [3rd Dept. 2004] citing Welton v. Drobniki, 298 AD2d 757 [3rd Dept 2002]) assuming the instant motion was timely.

Plaintiffs' cross motion for court ordered discovery must also be denied based on procedural deficiencies. Contrary to the requirements of CPLR Rule §2214, plaintiffs did not include a copy of the preliminary conference order they relied upon in making the motion. The error is apparently inadvertent inasmuch as the plaintiffs clearly intended to annex it as exhibit B. Furthermore, the affirmation of plaintiffs' counsel did not comply with the Uniform Rules for the New York State Trial Courts. In particular, counsel failed to aver that he conferred with Sterling in a good faith effort to resolve any discovery disputes raised in the cross motion ([22 NYCRR] § 202.7[a][[2]; see also, Amherst Synagogue v. Schuele Paint Co., Inc., 30 AD23d 1055 [3rd Dept [*3]2006]). Moreover, as already alluded to in the affirmation of plaintiffs counsel, all discovery was automatically stayed while Sterling's motion for summary judgment was pending in accordance with CPLR § 3214(b). Therefore the cross motion for court ordered discovery is denied without prejudice.

The foregoing constitutes the decision and order of this court

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J.S.C.