Kel Management Corp. v. Rogers & Wells

• Decision Date: 07 February 1985
• Citation: 488 N.Y.S.2d 156,64 N.Y.2d 904,477 N.E.2d 458
• Parties: , 477 N.E.2d 458 KEL MANAGEMENT CORP. et al., Respondents, v. ROGERS & WELLS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 156

488 N.Y.S.2d 156

64 N.Y.2d 904, 477 N.E.2d 458

KEL MANAGEMENT CORP. et al., Respondents, v. ROGERS & WELLS, Appellant.

Court of Appeals of New York.

Feb. 7, 1985.

Bruce E. Braverman and Leo P. Larkin, Jr., New York City, for appellant.

Sylvester J. Garamella, New York City, and Vincent P. Rao, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 102 A.D.2d 702, 476 N.Y.S.2d 334, should be reversed, with costs, and the motion to dismiss the complaint granted unconditionally.

This court has previously held that a party opposing a CPLR 3012(b) motion to dismiss based upon law office failure is obligated to submit an affidavit of merit containing evidentiary facts sufficient to establish a prima facie case. (Canter v. Mulnick, 60 N.Y.2d 689, 468 N.Y.S.2d 462, 455 N.E.2d 1257.) Here, plaintiffs served the complaint upon defendant more than three and one-half months past the statutorily required date, and when faced with a CPLR 3012(b) motion to dismiss, failed to submit an affidavit of merit. Because of this deficiency, it was error, as a matter of law, not to grant the motion to dismiss without condition. (Stolowitz v. Mount Sinai Hosp., 60 N.Y.2d 685, 686, 468 N.Y.S.2d 460, 455 N.E.2d 1255; Amodeo v. Radler, 59 N.Y.2d 1001, 466 N.Y.S.2d 953, 453 N.E.2d 1242; Barasch v. Micucci, 49 N.Y.2d 594, 599, 427 N.Y.S.2d 732, 404 N.E.2d 1275.) In view of this disposition, we express no view as to the merits of either plaintiffs' underlying claim or proffered justifications for belated service of its complaint.

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