Petrone v. Sclafani

In a medical malpractice action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Pizzuto, J.), dated June 24, 1986, which denied their motion for summary judgment based upon the plaintiffs failure to timely comply with a prior conditional order of preclusion of the same court (I. Aronin, J.), dated November 1,1985. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The plaintiff delayed in complying with the conditional order of preclusion requiring her to serve a verified bill of particulars within 60 days of service of the conditional order of preclusion upon her until some four months beyond the time period prescribed, and only after the defendants moved, on the basis of the plaintiffs default, for summary judgment. In opposing the summary judgment motion, the plaintiff failed to serve an affidavit of merit from a physician competent to attest to the meritorious nature of her claim. Accordingly, there being no extraordinary circumstances present in this case warranting relief from her default, it was an abuse of discretion, as a matter of law, for the court to deny the defendants’ motion to dismiss the action (see, Fiore v Galang, 64 NY2d 999, affg 105 AD2d 970; La Buda v Brookhaven Mem. Hosp. Med. Center, 62 NY2d 1014, affg 98 AD2d 711; Amodeo v Radler, 59 NY2d 1001, affg 89 AD2d 594; see also, Smith v Lefrak Org., 60 NY2d 828, affg 96 AD2d 859). Niehoff, J. P., Eiber, Sullivan and Harwood, JJ., concur.