
    Smith Brothers Construction Co., Inc., Respondent-Appellant, v New York Surety Company, Appellant-Respondent.
    [653 NYS2d 877]
   —Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court should have granted in part defendant’s motion for summary judgment and dismissed the fourth cause of action for fraud and punitive damages. Defendant demonstrated its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form establishing that the fourth cause of action fails to state a cause of action (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). In opposition, plaintiff failed to "provide[ ] evidentiary facts making out a [fraud] cause of action” (Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 280) and therefore failed to defeat that part of defendant’s motion. (Appeals from Order of Supreme Court, Erie County, Michalek, J.—Summary Judgment.) Present—Denman, P. J., Green, Pine, Callahan and Boehm, JJ.  