Buono v. Makita U.S.A., Inc.

Full title: FRANK A. BUONO, Respondent, v. MAKITA U.S.A., INC., et al., Appellants

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 15, 1991

175 A.D.2d 196 (N.Y. App. Div. 1991)

572 N.Y.S.2d 341

Opinion

July 15, 1991

Appeal from the Supreme Court, Kings County (Ramirez, J.).

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the defendants' motions to dismiss the action are granted unconditionally.

Since the plaintiff did not oppose or even appear on the motions to dismiss his action for failure to serve a complaint pursuant to the defendants' demands (see, CPLR 3012 [b]), he neither provided an excuse for his delay nor addressed the merits of his case. It was thus error as a matter of law to grant the motions conditionally (see, Kel Mgt. Corp. v Rogers Wells, 64 N.Y.2d 904; Stolowitz v Mount Sinai Hosp., 60 N.Y.2d 685; Jones v TSS Seedman's Inc., 131 A.D.2d 728). Kunzeman, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.