Opinion
May 22, 1989
Appeal from the Supreme Court, Nassau County (Burke, J.).
Ordered that the purported appeal from the order dated February 11, 1988, is dismissed, without costs or disbursements, for failure to serve and file a notice of appeal from that order; and it is further,
Ordered that the order dated August 21, 1987, is reversed insofar as appealed from, on the law, without costs or disbursements, the defendant's motion for summary judgment is granted unconditionally, and the complaint is dismissed.
Although law office failure may justify a default, the defaulting party is still required to supply an affidavit of merits from a person competent to attest to the meritorious nature of the claim (Fiore v Galang, 64 N.Y.2d 999, affg 105 A.D.2d 970). This requirement fully applies to a default in the timely service of a bill of particulars pursuant to a conditional order of preclusion (Fiore v Galang, 105 A.D.2d 970, supra). Since the plaintiff failed to establish the legal merits of her claim, the defendant's motion for summary judgment should have been granted unconditionally. Thompson, J.P., Lawrence, Kunzeman and Rubin, JJ., concur.