Klam v. Klam (203 A.D.2d 428, 1994)

—In an action, inter alia, to impose a constructive trust, the defendant appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated March 20, 1992, which denied her motion to dismiss the action for failure to timely serve a complaint pursuant to CPLR 3012 (b).

Ordered that the order is reversed, on the law, with costs, and the motion is granted, and the complaint is dismissed.

In view of the plaintiffs failure to submit an affidavit of merit containing evidentiary facts sufficient to establish a prima face case, it was error, as a matter of law, not to grant the defendant’s motion to dismiss pursuant to CPLR 3012 (b) (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904). Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.