ARIAS v. DDS (2024)

Judgment, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about May 1, 2023, in favor of defendants American Dental Offices, P.L.L.C., doing business as American Dental Centers (ADC) and John Vecchione, DDS pursuant to an order, same court and Justice, entered November 18, 2022, which granted their motions to dismiss the complaint, unanimously affirmed, without costs.  Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court properly dismissed plaintiffs’ complaint pursuant to CPLR 3216 (see Baczkowski v. Collins Constr. Co., Inc., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997];  Garcia v. Del Pacifico, 299 A.D.2d 188–283, 749 N.Y.S.2d 867 [1st Dept. 2002]).  While plaintiffs offered a justifiable excuse for their failure to file a note of issue following defendants’ service of 90–day notices, they failed to “submit the affidavit of a medical expert demonstrating the merits of the action” (Walker v. City of New York, 46 A.D.3d 278, 281–283, 847 N.Y.S.2d 173 [1st Dept. 2007]).  As noted by the motion court, the expert affirmation proffered was vague and conclusory and thus insufficient (see Smith v. Montefiore Med. Ctr., 60 A.D.3d 479, 874 N.Y.S.2d 127 [1st Dept. 2009]).

In view of the foregoing, we do not address plaintiffs’ further contentions.