Canter v. Mulnick, 60 N.Y.2d 689 (1983)
A party opposing a motion to dismiss for failure to timely serve a complaint must submit an affidavit of merit containing evidentiary facts sufficient to establish a prima facie case; failure to do so requires the granting of the motion to dismiss unconditionally.
Summary
This case addresses the requirements for opposing a motion to dismiss a complaint for failure to timely serve it under CPLR 3012(b). The Court of Appeals held that when a plaintiff fails to submit an affidavit of merit containing evidentiary facts demonstrating a prima facie case in response to such a motion, the motion to dismiss must be granted unconditionally. This ruling emphasizes the importance of providing sufficient evidence to support the claim when faced with a challenge based on procedural deficiencies. The Court explicitly declined to consider the merits of the underlying claim or the reasons for the delayed service.
Facts
The plaintiffs served the complaint on the defendant more than three and a half months after the statutorily required date for service.
The defendant subsequently moved to dismiss the complaint under CPLR 3012(b) for failure to timely serve.
In response to the motion, the plaintiffs failed to submit an affidavit of merit demonstrating a prima facie case.
Procedural History
The defendant moved to dismiss the complaint in the trial court.
The Appellate Division’s order was appealed to the Court of Appeals.
The Court of Appeals reversed the Appellate Division’s order and granted the motion to dismiss unconditionally.
Issue(s)
Whether a party opposing a CPLR 3012(b) motion to dismiss for failure to timely serve a complaint must submit an affidavit of merit containing evidentiary facts sufficient to establish a prima facie case, and what is the consequence of failing to do so?
Holding
Yes, because the failure to submit an affidavit of merit with evidentiary facts sufficient to establish a prima facie case requires the granting of the motion to dismiss unconditionally.
Court’s Reasoning
The Court of Appeals relied on its prior holdings, including Stolowitz v Mount Sinai Hosp., 60 NY2d 685, 686; Amodeo v Radler, 59 NY2d 1001; and Barasch v Micucci, 49 NY2d 594, 599, which established the requirement for an affidavit of merit in opposing a CPLR 3012(b) motion. The court emphasized that the plaintiffs’ failure to submit such an affidavit was a critical deficiency. Because of this failure, the Court held that it was an error of law not to grant the motion to dismiss unconditionally. The Court explicitly stated, “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.” The court declined to address the underlying merits of the claim or the justifications for the late service, focusing solely on the procedural deficiency. This highlights the importance of adhering to procedural rules and providing adequate evidentiary support when opposing a motion to dismiss based on those rules. The ruling serves as a reminder to practitioners that procedural compliance and adequate documentation are essential for maintaining a cause of action.