Opinion
December 18, 1987
Appeal from the Supreme Court, Onondaga County, Stone, J.
Present — Doerr, J.P., Boomer, Green, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Plaintiffs appeal from an order granting defendants' motion to dismiss plaintiffs' medical malpractice action for failure to serve a complaint (CPLR 3012 [b]), denying plaintiffs' cross motion for an extension of time to plead and for an order compelling defendants to accept plaintiffs' complaint.
The court did not err in granting defendants' motion to dismiss because plaintiffs failed to make an adequate showing of merit in opposition (Kel Mgt. Corp. v Rogers Wells, 64 N.Y.2d 904, 905; see also, Stolowitz v Mount Sinai Hosp., 60 N.Y.2d 685; Cummings v St. Joseph's Hosp. Health Center, 130 A.D.2d 957). Plaintiffs did not submit an affidavit of merit but argue that the submission of Charlotte McMillan's medical records is a sufficient substitute. The medical records do not constitute an appropriate substitute for the required affidavit of merit (see, Fiore v Galang, 64 N.Y.2d 999, 1001; Friedberg v Bay Ridge Orthopedic Assocs. 122 A.D.2d 194, 195). Accordingly, plaintiffs' failure to demonstrate the merit of their claims in response to the CPLR 3012 (b) motion requires the unconditional dismissal of the action (Kel Mgt. Corp. v Rogers Wells, supra; Cummings v St. Joseph's Hosp. Health Center, supra).