Amendolarev.Piontkowski

Appellate Division of the Supreme Court of New York, Second DepartmentMar 3, 1986
118 A.D.2d 529 (N.Y. App. Div. 1986)

March 3, 1986

Appeal from the Supreme Court, Suffolk County (Orgera, J.).


Order affirmed, without costs or disbursements.

CPLR 5015 (a) (1) permits a court to relieve a party from an order on the ground of excusable default; however, the party must also demonstrate that his claim is meritorious (see, Fidelity Deposit Co. v. Andersen Co., 60 N.Y.2d 693). Moreover, "except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit" (Fiore v. Galang, 64 N.Y.2d 999, 1001).

Since the plaintiff failed to submit any evidence of merit, much less the affidavit of a medical expert, in his effort to vacate the order dismissing his complaint in this medical malpractice action, and because the plaintiff's default resulted from his own dilatory tactics, Special Term properly denied the plaintiff's motion to vacate the order pursuant to CPLR 5015 (see, Baumann v. Dee, 100 A.D.2d 504). Lazer, J.P., Mangano, Bracken and Niehoff, JJ., concur.