Caruso v. International House of Pancakes

Full title: STEPHEN CARUSO, Respondent, v. INTERNATIONAL HOUSE OF PANCAKES, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 10, 1996

228 A.D.2d 462 (N.Y. App. Div. 1996)

643 N.Y.S.2d 1023

Opinion

June 10, 1996

Appeal from the Supreme Court, Suffolk County (Cohalan, J.).

Ordered that the order is reversed, on the law, with costs, the defendant's motion is granted without condition, and the action is dismissed.

Since the plaintiff failed to address the merits of his case in opposition to the defendant's motion to dismiss pursuant to CPLR 3012 (b), the court erred as a matter of law by granting the motion conditionally (see, Kel Mgt. v. Rogers Wells, 64 N.Y.2d 904, 905; Stolowitz v. Mount Sinai Hosp., 60 N.Y.2d 685; Rosano v County of Nassau, 208 A.D.2d 704, 705; Sanders v. Van Dome Mgt., 191 A.D.2d 630). O'Brien, J.P., Ritter, Pizzuto and Altman, JJ., concur.