Opinion
January 8, 1990
Appeal from the Supreme Court, Queens County (Leviss, J.).
Ordered that the order is reversed, on the law, with costs, and the motion denied.
A motion to restore to the Trial Calendar a case which has been stricken by reason of a plaintiffs' default must be supported by both an acceptable explanation of the default and an affidavit of merit (see, Wind v. Cacho, 111 A.D.2d 808; see also, Zaldua v Metropolitan Suburban Bus Auth., 97 A.D.2d 842). An affidavit of merit in a case grounded on medical malpractice must be made by a physician or expert indicating that there is a meritorious claim of malpractice (see, Canter v. Mulnick, 60 N.Y.2d 689; Hatcher v City of New York, 99 A.D.2d 481). In the instant case, the unsworn reports of the three physicians which were attached to the plaintiffs' papers contained no such statements. The papers did not even contain a suggestion that medical malpractice had been committed. Accordingly, the plaintiffs' papers were insufficient to warrant restoration of the case to the calendar. Mangano, J.P., Bracken, Sullivan and Balletta, JJ., concur.