Pantaliano v. Goodman

In a medical malpractice action to recover damages for personal injuries and wrongful death, the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Levitt, J.), dated April 21, 1993, which, upon granting the defendants’ motion for summary judgment based on the plaintiffs’ failure to comply with [608] a conditional order of preclusion, is in favor of the defendants and against them, dismissing the complaint with prejudice. Ordered that the judgment is affirmed, with costs. In order to avoid the adverse impact of an order of preclusion, a party must establish both a reasonable excuse for his or her default and a meritorious claim (see, Mariani v Fleishman, 160 AD2d 911). While the plaintiffs may have established a reasonable excuse for their default in opposing the motion to preclude and in failing to comply with the conditional order of preclusion, they have failed to establish the meritorious nature of their claim. In a medical malpractice action, expert medical opinion evidence generally is required to demonstrate merit (see, Martinelli v Hessekiel, 132 AD2d 691; Fiore v Galang, 64 NY2d 999, 1001). Under the circumstances of this case, since no affidavit of merit from a physician was provided, we find that the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.