Opinion
September 30, 1987
Appeal from the Supreme Court, Erie County, Gossel, J.
Present — Callahan, J.P., Denman, Boomer, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: Since plaintiff failed to submit any affidavit of merit in opposition to the motion pursuant to CPLR 3216, it was an improvident exercise of discretion for Special Term to deny defendants' motion to dismiss plaintiff's complaint (see, Salch v. Paratore, 60 N.Y.2d 851, rearg denied 61 N.Y.2d 759; Walker v. Town of Lockport, 109 A.D.2d 1102, affd 65 N.Y.2d 840; McDonald v. Song Mountain, 125 A.D.2d 1006).