Stolowitz v. Mount Sinai Hospital

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellant, and the motion to dismiss the complaint granted unconditionally.

On this motion by defendant to dismiss the action for the failure of plaintiff for a period of nine months to serve a complaint, plaintiff concedes, as he must, that no affidavit of merits was submitted. Because of this deficiency it was error as a matter of law not to grant the motion to dismiss without condition. (Amodeo v Radler, 59 NY2d 1001; Barasch v Micucci, 49 NY2d 594, 599; Sortino v Fisher, 20 AD2d 25, 31-32.)

I…