Mosberg v. Elahi

Full title: CHRISTINE J. MOSBERG, Appellant, v. E. HAKIM ELAHI, Respondent

Court: Court of Appeals of the State of New York

Date published: Oct 15, 1992

80 N.Y.2d 941 (N.Y. 1992)

590 N.Y.S.2d 866

605 N.E.2d 353

Opinion

Submitted September 10, 1992

Decided October 15, 1992

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Alan Le Vine, J. Anthony Malillo, Flushing, and Russell D. Mauro for appellant.

Heidell, Pittoni, Murphy Bach, New York City (Barbara A. Sheehan and Charles L. Bach, Jr., of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The party opposing a motion to dismiss for failure to prosecute is obligated to make an evidentiary showing sufficiently demonstrating a "good and meritorious cause of action" (CPLR 3216 [e]; see, Kel Mgt. Corp. v Rogers Wells, 64 N.Y.2d 904, 905). In medical malpractice actions expert medical opinion evidence is required to demonstrate merit, except as to matters within the ordinary experience and knowledge of laypersons (Fiore v Galang, 64 N.Y.2d 999). We agree with the Appellate Division that plaintiff failed to satisfy these requirements.

Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur; Judge SMITH taking no part.

Order affirmed, with costs, in a memorandum.