Albert G. Ruben & Company, Inc. (New York), Respondent, v. Harry W. Fritzen, Jr., et al., Defendants, and James W. Barber, Appellant

Albert G. Ruben & Company, Inc. (New York), Respondent, v Harry W. Fritzen, Jr., et al., Defendants, and James W. Barber, Appellant. [MAJORITY] Order, Supreme Court, New York County (A. F. Klein, J.), entered July 26, 1983, denying defendant James W. Barber’s (defendant) motion for partial summary judgment, without prejudice to renewal after completion of discovery, is unanimously affirmed, with costs. 11 This was a motion for partial summary judgment under CPLR 3212. Such a motion must be supported by an affidavit “by a person having knowledge of the facts” (CPLR 3212, subd [b]). This motion was not supported by an affidavit by a person having knowledge of the facts. The only papers submitted in support of the motion are by attorneys who do not have knowledge of the facts. 11 Defendant requests us basically to treat this motion as a motion to dismiss under CPLR 3211 (subd [a], par 7) for failure to state a cause of action. But the notice of motion did not request this relief; it requested “partial summary judgment pursuant to Rule 3212” and the supporting affirmation asked for the same relief. Consistently with the notice of motion, the court treated the motion as one for “partial summary judgment”. We do not think it appropriate on appeal to treat the motion as some other kind of motion, and in particular, as a motion under CPLR 3211 (subd [a], par 7), which would merely attack the pleading as defective — and not be a basis for res judicata (175 East 74th Carp, v Hartford Acc. & Ind. Co., 72 AD2d 521, revd on other grounds 51 NY2d 585; Allston v Incorporated Vil. of Rockville Centre, 25 AD2d 545) or summary judgment (Werfel vZivnostenska Banka, 287 NY 91, 93). Concur — Sandler, J. P., Carro, Asch, Silverman and Fein, JJ.