Opinion
August 31, 1987
Appeal from the Supreme Court, Kings County (Pizzuto, J., I. Aronin, J.).
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 plaintiff's 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 N.Y.2d 999, affg 105 A.D.2d 970; La Buda v. Brookhaven Mem. Hosp. Med. Center, 62 N.Y.2d 1014, affg 98 A.D.2d 711; Amodeo v. Radler, 59 N.Y.2d 1001, affg 89 A.D.2d 594; see also, Smith v. Lefrak Org., 60 N.Y.2d 828, affg 96 A.D.2d 859). Niehoff, J.P., Eiber, Sullivan and Harwood, JJ., concur.