Kel Management Corp. v. Rogers & Wells, 64 N.Y.2d 904

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division 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 NY2d 689.) 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 NY2d 685, 686; Amodeo v Radler, 59 NY2d 1001; Barasch v Micucci, 49 NY2d 594, 599.) 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.

Question certified answered in the negative.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

Case Details

Case Name: Kel Management Corp. v. Rogers & Wells

Court Name: New York Court of Appeals

Date Published: Feb 7, 1985

Citations: 64 N.Y.2d 904; 477 N.E.2d 458; 488 N.Y.S.2d 156; 1985 N.Y. LEXIS 15918

Court Abbreviation: N.Y.