Summary
In Michaels v Wetsell (255 AD2d 298 [2d Dept 1998]), it was held that the trial court improperly exercised its discretion in granting the plaintiffs’ request for a continuance after a failure to obtain an affidavit of merit to oppose a summary judgment motion despite an opportunity of six months to do so.
Summary of this case from Thorsen v. Sunbelt Rentals, Inc.Opinion
November 2, 1998
Appeal from the Supreme Court, Suffolk County (Henry, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendant's motion papers made out a prima facie case for summary judgment. To defeat the defendant's motion, the plaintiffs were required to submit an affidavit of merit from an expert competent to testify to evidentiary facts which would support their claim of professional malpractice (see, Assad v. Gelb, 110 A.D.2d 738; Horvath v. Bayonne Hosp., 99 A.D.2d 824; see also, De Stefano v. MT Health Clubs, 239 A.D.2d 200; Post Co. v. Sidney Bitterman, Inc., 219 A.D.2d 214). The plaintiffs failed to submit an affidavit of merit from an expert witness. Furthermore, "[s]ummary judgment may not be defeated on the ground that more discovery is needed, where * * * the side advancing such an argument has failed to ascertain the facts due to its own inaction" (Meath v. Mishrick, 68 N.Y.2d 992, 994; see also, Gold v. City of New York, 141 A.D.2d 502; Pannullo v. Staro, 139 A.D.2d 636). The plaintiffs' attorney did not set forth any reasonable excuse for his failure to obtain an affidavit of merit even though he had six months within which to do so. The Supreme Court improvidently exercised its discretion in granting the plaintiffs' request for a continuance.
Bracken, J. P., Ritter, Copertino, Santucci and Altman, JJ., concur.