Rosado v. Klotz

In an action to recover damages arising from medical malpractice, etc., the defendant Milhorat and the defendants Leslie, Henry, Heaton, and Epstein separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated March 18, 1996, as on condition that the plaintiff serve an affidavit of merit, granted those branches of the plaintiff’s motion which were to vacate so much of a judgment, entered upon the plaintiff’s default, as dismissed the complaint insofar as asserted against them, and the defendants Donald Klotz, Peter K. Kottmeier, and Francis T. Velcek separately appeal from the same order. Ordered that the appeals of the defendants Donald Klotz, Peter K. Kottmeier, and Francis T. Velcek are dismissed, for failure to perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [a], [e]); and it is further, Ordered that the order is reversed insofar as appealed from by the defendant Milhorat and the defendants Leslie, Henry, Heaton, and Epstein, on the law, and those branches of the [331] plaintiffs motion which were to vacate so much of the judgment as dismissed the complaint insofar as asserted against those defendants are denied; and it is further, Ordered that one bill of costs is awarded to the defendant Milhorat and to the defendants Leslie, Henry, Heaton, and Epstein, appearing separately and filing separate briefs. The plaintiff defaulted in opposing motions of the defendants to dismiss the action pursuant to CPLR 3216. Judgment was entered dismissing the complaint and thereafter the plaintiff moved to vacate her default. However, the motion was not supported by a proper affidavit of the merit of her claims. The court erred in granting the motion to vacate on condition that the plaintiff file such an affidavit of merit within 30 days (see, Pascone v Cordis Corp., 161 AD2d 749; see also, Nepomniaschi v Goldstein, 182 AD2d 743; Kelly v Long Is. Coll. Hosp., 199 AD2d 244; Murdock v Center for Special Surgery, 199 AD2d 482). Rosenblatt, J. P., Miller, Ritter and Copertino, JJ., concur.