Moran v. Bertola

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 NY2d 851 , rearg denied 61 NY2d 759 ; Walker v Town of Lockport, 109 AD2d 1102 , affd 65 NY2d 840 ; McDonald v Song Mountain, 125 AD2d 1006 ). (Appeal from order of Supreme Court, Erie County, Gossel, J.—dismiss complaint.) Present—Callahan, J. P., Denman, Boomer, Balio and Lawton, JJ.