Mosberg v. Elahi

605 N.E.2d 353, 80 N.Y.2d 941, 590 N.Y.S.2d 866, 1992 N.Y. LEXIS 3363

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The party opposing a motion to dismiss for failure to prosecute is obligated to make an evidentiary showing sufficiently demonstrating a "good and meritorious cause of action” (CPLR 3216 [e]; see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905). In medical malpractice actions expert medical opinion evidence is required to demonstrate merit, except as to matters within the ordinary experience and knowledge of laypersons (Fiore v Galang, 64 NY2d 999). We agree with the Appellate Division that plaintiff failed to satisfy these requirements.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

Order affirmed, with costs, in a memorandum.