Wagner v. Saint Francis Hospital

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated May 15, 1996, as denied that branch of her motion which was to vacate a judgment of the same court entered June 27, 1995, which dismissed the action against the defendant St. Francis Hospital, and to restore the action to the trial calendar as against that defendant. [629] Ordered that the order is affirmed insofar as appealed from, with costs. A motion to restore to the trial calendar a case which has been stricken by reason of a plaintiffs default must be supported by both an acceptable explanation of the default and an affidavit of merit (see, Saeed v Boulevard Hosp., 157 AD2d 654). We agree with the Supreme Court that the plaintiff here failed to submit an adequate affidavit of merit as against the defendant Saint Francis Hospital (see, McKay v H.I.P. of Greater N. Y., 163 AD2d 280). We have considered the plaintiffs remaining contention and find it to be without merit. O’Brien, J. P., Thompson, Friedmann and Goldstein, JJ., concur.