From Casetext: Smarter Legal Research

Palo v. Latt

Appellate Division of the Supreme Court of New York, Second Department
Mar 17, 2000
270 A.D.2d 323 (N.Y. App. Div. 2000)

Opinion

Submitted January 26, 2000

March 17, 2000

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Suffolk County (D'Emilio, J.), entered June 11, 1999, which granted the plaintiffs' motion to vacate an order dated July 21, 1998, granting the defendant's motion to dismiss the complaint for want of prosecution, upon their default in responding to the motion.

Martin, Clearwater Bell, New York, N.Y. (Caroline L. Werner, Steven A. Lavietes, and Lisa Mudd of counsel), for appellant.

LoPresti Siegel, LLP, Garden City, N.Y. (Steven S. Siegel of counsel), for respondents.

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the order dated July 21, 1998, is reinstated.

The court erred in granting the plaintiffs' motion to vacate the order dismissing the complaint for want of prosecution entered upon the plaintiffs' default. In support of the motion to vacate their default, the plaintiffs submitted an affirmation from an expert physician who was not authorized by law to practice in this State, and thus, the affirmation did not constitute competent evidence (see, CPLR 2106 N.Y.CPLR). Accordingly, the plaintiffs failed to establish that they have a meritorious cause of action, which is a requirement for vacatur (see, Fiore v. Galang, 64 N.Y.2d 999; Perez v. Astoria Gen. Hosp., 260 A.D.2d 457; Tolliver v. County of Nassau, 231 A.D.2d 708; McKay v. H.I.P. of Greater N.Y., 163 A.D.2d 280).

MANGANO, P.J., SANTUCCI, KRAUSMAN, FLORIO, and SCHMIDT, JJ., concur.


Summaries of

Palo v. Latt

Appellate Division of the Supreme Court of New York, Second Department
Mar 17, 2000
270 A.D.2d 323 (N.Y. App. Div. 2000)
Case details for

Palo v. Latt

Case Details

Full title:STEFAN PALO, JR., et al., Respondents, v. KHIN N. LATT, ETC., Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 17, 2000

Citations

270 A.D.2d 323 (N.Y. App. Div. 2000)
704 N.Y.S.2d 143

Citing Cases

Wilcox v. Winter

We are unable to conclude that Supreme Court abused its discretion in granting plaintiff's motion to renew.…

Tomeo v. Beccia

The plaintiff failed to raise a triable issue of fact in opposition to Good Samaritan's prima facie showing.…