Opinion
May 31, 1994
Appeal from the Supreme Court, Queens County (LeVine, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the plaintiffs' cross motion is denied, the order dated March 16, 1992, is reinstated to the extent that it precluded the plaintiffs from offering evidence against the appellant, the appellant's motion for summary judgment is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendant is severed.
It is well established that in order to avoid the impact of an order of preclusion, a plaintiff must establish an excusable default and the existence of a meritorious claim (see, Price v Salvo, 203 A.D.2d 349; Becerril v. Skate Way Roller Rink, 184 A.D.2d 365). In a medical malpractice action, establishing a meritorious claim requires an affidavit of merit by a physician (see, e.g., Fiore v. Galang, 64 N.Y.2d 999; Trinchera v. Yonkers Gen. Hosp., 131 A.D.2d 841). The plaintiffs here failed to meet this requirement and therefore, the court erred in vacating the order of preclusion, which was issued upon the plaintiffs' default.
Since the order dated March 16, 1992, precluded the plaintiffs from offering virtually all evidence of the appellant's medical malpractice, the appellant's motion for summary judgment is granted. Sullivan, J.P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.