Martinelli v. Hessekiel , 518 N.Y.S.2d 642 ( 1987 )

Appeal by the defendants Ralph Hessekiel and Catholic Medical Center of Brooklyn and Queens, Inc. from so much of an order of the Supreme Court, Kings County (Pizzuto, J.), dated June 13, 1986, as conditionally denied their separate cross motions for summary judgment.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, appellants’ respective cross motions are granted unconditionally, and the complaint is dismissed as against the appellants.

In their opposition to the appellants’ cross motions, the plaintiffs did not establish a reasonable excuse for their failure to comply with two prior conditional orders of preclusion (see, Schicchi v Green Constr. Corp., 100 AD2d 509; Hatch v St. Joseph's Hosp., 93 AD2d 999). In addition to setting forth a reasonable excuse for their default, the plaintiffs were required to provide an affidavit of merit by a person competent to attest to the meritorious nature of their claim. In this medical malpractice action, the plaintiffs failed to produce expert medical opinion evidence in a physician’s affidavit to demonstrate the merits of the cause of action (see, Fiore v Galang, 105 AD2d 970, affd 64 NY2d 999; Amodeo v Radler, 89 AD2d 594, affd 59 NY2d 1001).

Given the inordinate delay herein, we find that dismissal of the complaint as against the appellants is a more appropriate sanction. Mangano, J. P., Bracken, Kunzeman and Harwood, JJ., concur.