Majority
The papers in opposition to the motion to dismiss the complaint pursuant to rule 107 of the Rules of Civil Practice failed to present the document or written memorandum relied upon by plaintiff to satisfy the Statute of Frauds. Moreover such alleged document or memorandum was not produced before the court below either physically or by a copy thereof and appears nowhere in the record here. The mere statement of plaintiff that a writing sufficient to satisfy the Statute of Frauds exists, is not enough to defeat a motion to dismiss under subdivision 7 of rule 107 of the Rules of Civil Practice. It is incumbent upon the party opposing such a motion to produce the writing or explain the failure to do so (Webb & Knapp v. United Cigar-Whelan Stores Corp., 276 App. Div. 583 ). Plaintiff having failed in that respect the motion to dismiss below should have been granted.
The order should be reversed, with $10 costs, and motion granted.
Hofstadter, Steuer and Aurielio, JJ., concur.