Kel Management Corp. v. Rogers & Wells

Full title: KEL MANAGEMENT CORP. et al., Respondents, v. ROGERS WELLS, Appellant

Court: Court of Appeals of the State of New York

Date published: Feb 7, 1985

64 N.Y.2d 904 (N.Y. 1985)

488 N.Y.S.2d 156

477 N.E.2d 458

Opinion

Decided February 7, 1985

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Edward J. Greenfield, J.

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

Sylvester J. Garamella and Vincent P. Rao for respondents.

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 N.Y.2d 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 N.Y.2d 685, 686; Amodeo v Radler, 59 N.Y.2d 1001; Barasch v Micucci, 49 N.Y.2d 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 N.Y.CRR 500.4), order reversed, etc.