Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Denman, J.P., Boomer, Pine, Balio and Davis, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: Plaintiffs commenced this medical malpractice action seeking damages for personal injuries allegedly caused by defendant's negligence in the misdiagnosis and treatment of plaintiff Kathleen Coakley. Defendant interposed an answer and served various discovery demands on plaintiffs. Plaintiffs failed to comply with the discovery demands and a 30-day conditional order of preclusion was entered. Plaintiffs served an unverified bill of particulars one day after expiration of the 30-day period and failed to serve the medical authorizations as directed by the order. Defendant thereafter moved for summary judgment dismissing the complaint. In opposition, plaintiffs submitted an affidavit by a legal assistant employed by their attorneys in which the affiant averred that, prior to the expiration of the 30-day period, he had advised defendant's attorney in writing that he had mailed medical authorization forms to plaintiffs for signature, and that executed medical authorizations would be sent to defendant as soon as they were received. Special Term denied defendant's motion.
On appeal, defendant contends that Special Term abused its discretion in relieving plaintiffs of their default because plaintiffs failed to supply a reasonable excuse for their default and failed to submit an affidavit of merit. We agree. Although Special Term has discretion to relieve a party of a default because of "law office failure" (CPLR 2005), a party seeking to be relieved of a default is required to tender a reasonable excuse for the delay and an affidavit demonstrating the meritorious nature of the claim (see, CPLR 2005, 5015 [a]; Kel Mgt. Corp. v Rogers Wells, 64 N.Y.2d 904; Quigley v Jabbur, 124 A.D.2d 398, 399). In a medical malpractice action, expert medical opinion is required to demonstrate the merit of matters not within the ordinary experience and knowledge of laypersons (Fiore v Galang, 64 N.Y.2d 999, 1000; Fidelity Deposit Co. v Andersen Co., 60 N.Y.2d 693, 695; Quigley v Jabbur, supra). Here, plaintiffs failed to offer a reasonable excuse for the delay or to submit competent medical opinion regarding the merits of the medical malpractice action. Accordingly, Special Term abused its discretion in denying defendant's motion.