Klam v. Klam

Appellate Division of the Supreme Court of New York

Klam v. Klam

203 A.D.2d 428, 610 N.Y.S.2d 867, 1994 N.Y. App. Div. LEXIS 4024

Appellate Division of the Supreme Court of the State of New York·Decided April 18, 1994·Published

Opinion

—In an action, inter alia, to impose a constructive trust, the defendant appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated March 20, 1992, which denied her motion to dismiss the action for failure to timely serve a complaint pursuant to CPLR 3012 (b).

[429]*429Ordered that the order is reversed, on the law, with costs, and the motion is granted, and the complaint is dismissed.

In view of the plaintiffs failure to submit an affidavit of merit containing evidentiary facts sufficient to establish a prima face case, it was error, as a matter of law, not to grant the defendant’s motion to dismiss pursuant to CPLR 3012 (b) (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904). Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.

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—In an action, inter alia, to impose a constructive trust, the defendant appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated March 20, 1992, which denied her motion to dismiss the action for failure to timely serve a complaint pursuant to CPLR 3012 (b).

[429]*429Ordered that the order is reversed, on the law, with costs, and the motion is granted, and the complaint is dismissed.

In view of the plaintiffs failure to submit an affidavit of merit containing evidentiary facts sufficient to establish a prima face case, it was error, as a matter of law, not to grant the defendant’s motion to dismiss pursuant to CPLR 3012 (b) (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904). Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.

Klam v. Klam, 203 A.D.2d 428, 610 N.Y.S.2d 867, 1994 N.Y. App. Div. LEXIS 4024 (N.Y. Ct. App. 1994).

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Opinion

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