Opinion
March 28, 1994
Appeal from the Supreme Court, Kings County (Levine, J.).
Ordered that the appeal from the order dated March 6, 1992, is dismissed; and it is further,
Ordered that the order dated October 23, 1992, is reversed insofar as appealed from, on the law, the appellant's motion is granted, and the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendant is severed; and it is further,
Ordered that the appellant is awarded one bill of costs.
The plaintiffs failed to respond to the appellant's demand that they serve and file a note of issue in this action within 90 days after the receipt of the notice (see, CPLR 3216 [a]). Contrary to the finding of the Supreme Court, the plaintiffs' attorney's request for and the scheduling of a preliminary conference did not obviate the requirement that the plaintiffs either move to extend the 90-day period or to vacate the notice (see, Wilson v Nembhardt, 180 A.D.2d 731; Turman v. Amity OBG Assocs., 170 A.D.2d 668; Meth v. Maimonides Med. Ctr., 99 A.D.2d 799).
In light of the plaintiffs' complete failure to respond to the 90-day notice, they were required to provide a reasonable excuse for their default and to demonstrate a meritorious cause of action (see, CPLR 3216 [e]; Turman v. Amity OBG Assocs., supra; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552). Even assuming that the proffered excuse of law office failure was reasonable in light of the facts and circumstances of this case, the plaintiffs' affidavit of merit was insufficient to demonstrate the merits of this medical malpractice action, since an affidavit of a medical expert was required (see, Mosberg v. Elahi, 80 N.Y.2d 941, 942; Fiore v. Galang, 64 N.Y.2d 999, 1001; Salch v Paratore, 60 N.Y.2d 851; Ramos v. Lapommeray, 135 A.D.2d 439, 440; Midolo v. Horner, 131 A.D.2d 825; Meth v. Maimonides Med. Ctr., supra). As a result, the action should have been dismissed based upon the plaintiffs' failure to prosecute. In view of our determination, we need not address the appellant's remaining contention concerning the Statute of Limitations.
The appellant's appeal from the order dated March 6, 1992, is dismissed as academic, in view of our determination on the appeal from the order dated October 23, 1992. Lawrence, J.P., Joy, Friedmann and Krausman, JJ., concur.