PALO v. LATT (2000)

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Suffolk County (D'Emilio, J.), entered June 11, 1999, which granted the plaintiffs' motion to vacate an order dated July 21, 1998, granting the defendant's motion to dismiss the complaint for want of prosecution, upon their default in responding to the motion.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the order dated July 21, 1998, is reinstated.

The court erred in granting the plaintiffs' motion to vacate the order dismissing the complaint for want of prosecution entered upon the plaintiffs' default.   In support of the motion to vacate their default, the plaintiffs submitted an affirmation from an expert physician who was not authorized by law to practice in this State, and thus, the affirmation did not constitute competent evidence (see, CPLR 2106).   Accordingly, the plaintiffs failed to establish that they have a meritorious cause of action, which is a requirement for vacatur (see, Fiore v. Galang, 64 N.Y.2d 999, 489 N.Y.S.2d 47, 478 N.E.2d 188;  Perez v. Astoria Gen. Hosp., 260 A.D.2d 457, 688 N.Y.S.2d 195;  Tolliver v. County of Nassau, 231 A.D.2d 708, 647 N.Y.S.2d 834;  McKay v. H.I.P. of Greater N.Y., 163 A.D.2d 280, 558 N.Y.S.2d 561).

MEMORANDUM BY THE COURT.