Martinelli v. Hessekiel

In a medical malpractice action to recover damages for personal injuries, etc., the defendant Wyckoff Heights Hospital appeals from an order of the Supreme Court, Kings County (Jones, J.), dated December 2, 1985, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiffs failed to comply with a final order of preclusion. Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the plaintiffs’ action against the remaining defendants is severed. The plaintiffs were required to provide an affidavit of merit by a person competent to attest to the meritorious nature of the claim. In a medical malpractice action, expert medical opinion evidence is required to demonstrate merit (see, Fiore v Galang, 105 AD2d 970, affd 64 NY2d 999; Amodeo v Radler, 89 AD2d 594, affd 59 NY2d 1001; Saeed v Boulevard Hosp., 109 AD2d 831). No affidavit of merit was provided here. In the absence of such an affidavit the appellant’s motion for summary judgment as to it should have been granted. Lawrence, J. P., Kunzeman, Kooper and Spatt, JJ., concur.