Opinion
January 31, 1991
Appeal from the Supreme Court, Bronx County (Howard R. Silver, J.).
Plaintiff submitted no opposition to defendant's motion to dismiss pursuant to CPLR 3012 (b). In absence of an affidavit of merit, it was error, as a matter of law, not to grant the motion without condition (Kel Mgt. Corp. v Rogers Wells, 64 N.Y.2d 904). The contentions raised in the brief submitted on behalf of plaintiff are dehors the certified record on appeal, and may not be considered in evaluating the merits of this appeal (Block v Nelson, 71 A.D.2d 509).
Concur — Milonas, J.P., Wallach, Asch, Kassal and Smith, JJ.