Opinion
June 22, 1998
Appeal from the Supreme Court, Nassau County (Schmidt, J.).
Ordered that the appeal is dismissed as academic; and it is further,
Ordered that the order dated December 28, 1995, is reversed insofar as cross-appealed from, on the law and as a matter of discretion, the motion to dismiss the complaint insofar as asserted against the cross appellants is granted unconditionally, and the action against the remaining defendants is severed.
"In order to excuse the failure to timely comply with a conditional order of preclusion [a plaintiff] must demonstrate a reasonable excuse for the delay and the existence of a meritorious cause of action" (Higgins v. Community Hosp., 135 A.D.2d 607, 609; see, Murdock v. Center for Special Surgery, 199 A.D.2d 482). Moreover, in a medical malpractice action, a plaintiff must submit an affidavit of merit from an expert in order to defeat a motion to dismiss predicated upon a failure to comply with a conditional order of preclusion (Fiore v. Galang, 64 N.Y.2d 999; Murdock v. Center for Special Surgery, supra). In the case at bar, the plaintiffs failed to submit an affidavit of merit from an expert.
Under these circumstances, the Supreme Court improvidently exercised its discretion in favor of relieving the plaintiffs from their default (Murdock v. Center for Special Surgery, supra).
Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.