Tolliver v. County of Nassau

• Decision Date: 30 September 1996
• Citation: 647 N.Y.S.2d 834,231 A.D.2d 708
• Parties: Barbara TOLLIVER, etc., et al., Appellants, v. COUNTY OF NASSAU, Defendant, Elliot Duboys, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 834

647 N.Y.S.2d 834

231 A.D.2d 708

Barbara TOLLIVER, etc., et al., Appellants, v. COUNTY OF NASSAU, Defendant Elliot Duboys, etc., Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 30, 1996.

Finz & Finz, P.C., New York City (Daniel Chavez, of counsel), for appellants.

Kelly, Rode & Kelly, LLP, Mineola (Joseph Francis Ferrette, of counsel), for respondent.

Before ROSENBLATT, J.P., and THOMPSON, SANTUCCI, ALTMAN and HART, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Kutner, J.), entered May 23, 1995, which denied their motion to relieve them of their default in complying with a conditional order of preclusion and granted the motion of the defendant Elliot Duboys for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed, with costs.

In order to be relieved of their default, the plaintiffs were required to demonstrate both a reasonable excuse and a meritorious cause of action (see, CPLR 5015[a]; Eugene Di Lorenzo, Inc. v. Dutton Lumber Co., 67 N.Y.2d 138, 501 N.Y.S.2d 8, 492 N.E.2d 116). The fact that the plaintiffs' counsel was in the process of forming an association with another law firm during the time period within which the plaintiff was to comply with the conditional order of preclusion is insufficient to excuse the delay in complying with the conditional order of preclusion (see, CPLR 2005; Fiore v. Galang, 64 N.Y.2d 999, 489 N.Y.S.2d 47, 478 N.E.2d 188; see also, Felicciardi v. Town of Brookhaven, 205 A.D.2d 495, 613 N.Y.S.2d 188).

Furthermore, even if the alleged law-office failure were to be excused, "[i]t is well settled that in a medical malpractice action, a plaintiff must submit an affidavit of merit from an expert in order to defeat a motion for summary judgment predicated upon a failure to comply with a conditional order of preclusion" (Murdock v. Center for Special Surgery, 199 A.D.2d 482, 483, 605 N.Y.S.2d 387; see, Fiore v. Galang, supra). Here, however, the physician's report submitted by the plaintiffs is unsigned, unsworn, and does not even identify the physician who prepared the report.

Under these circumstances, the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion to vacate their default and properly granted the motion of the defendant Elliot Duboys for...