Opinion
April 1, 1991
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the appeal from the order entered August 10, 1989, is dismissed (see, CPLR 5511); and it is further,
Ordered that the order entered October 11, 1989, is affirmed; and it is further,
Ordered that the defendants are awarded one bill of costs.
It is well established that a party seeking to be relieved of his or her default must establish both a reasonable excuse for the default and merit (see, Pannullo v. Staro, 139 A.D.2d 636; see also, Scopino v. St. Joseph's Hosp., 142 A.D.2d 569). The sufficiency of the excuse for the default, as well as of the affidavit establishing the meritorious case, is ordinarily left to the discretion of the Supreme Court (see, Fidelity Deposit Co. v. Andersen Co., 60 N.Y.2d 693; Perellie v. Crimson's Rest., 108 A.D.2d 903; De Vito v. Marine Midland Bank, 100 A.D.2d 530). In the matter at bar, the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion to vacate their default, because the physician's affidavit submitted to establish the merits of their claim did not indicate, in any way, that the defendants departed from accepted medical standards or that any such departure was a proximate cause of any injuries to the injured plaintiff. Absent even a bare statement of opinion by a medical expert that the treatment rendered was below acceptable professional standards (see, Canter v. Mulnick, 60 N.Y.2d 689, 690), the affidavit was inadequate (cf., Amsler v Verrilli, 119 A.D.2d 786). In light of the foregoing, this court cannot consider the merits of the underlying motion to dismiss for failure timely to file a Notice of Medical Malpractice Action in light of the recent decision of the Court of Appeals in Tewari v. Tsoutsouras ( 75 N.Y.2d 1). Thompson, J.P., Kunzeman, Eiber and Rosenblatt, JJ., concur.