Knolls Cooperative Section No. 2, Inc. v. Evans Development Corp.

169 A.D.2d 690, 565 N.Y.S.2d 489, 1991 N.Y. App. Div. LEXIS 820

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1991
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered May 17, 1990, which granted defendant’s motion pursuant to CPLR 3012 (b) to dismiss the action unless plaintiff served a complaint within 20 days of the signing of the order, is modified, on the law, by deleting that portion of the order permitting plaintiff to serve a complaint within 20 days and to grant the motion unconditionally, and as so modified, the order is affirmed, with costs.

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 NY2d 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 AD2d 509). Concur—Milonas, J. P., Wallach, Asch, Kassal and Smith, JJ.