Amendolare v. Piontkowski

Appellate Division of the Supreme Court of New York

Amendolare v. Piontkowski

118 A.D.2d 529, 499 N.Y.S.2d 156, 1986 N.Y. App. Div. LEXIS 54397

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 3, 1986

StatusPublished

Cited by4 cases

This text of 118 A.D.2d 529 (Amendolare v. Piontkowski) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Amendolare v. Piontkowski, 118 A.D.2d 529, 499 N.Y.S.2d 156, 1986 N.Y. App. Div. LEXIS 54397 (N.Y. Ct. App. 1986).

Pincite

Opinion

In a medical malpractice action, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Orgera, J.), dated June 10, 1984, which denied his motion to vacate an order of the same court (Underwood, J.), dated April 3, 1984, which dismissed his complaint.

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 NY2d 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 NY2d 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 AD2d 504). Lazer, J. P., Mangano, Bracken and Niehoff, JJ., concur.

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In a medical malpractice action, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Orgera, J.), dated June 10, 1984, which denied his motion to vacate an order of the same court (Underwood, J.), dated April 3, 1984, which dismissed his complaint.

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 NY2d 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 NY2d 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 AD2d 504). Lazer, J. P., Mangano, Bracken and Niehoff, JJ., concur.

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Bluebook (online)

118 A.D.2d 529, 499 N.Y.S.2d 156, 1986 N.Y. App. Div. LEXIS 54397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amendolare-v-piontkowski-nyappdiv-1986.

Opinion

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