Opinion
October 21, 1991
Appeal from the Supreme Court, Westchester County (Coppola, J.).
Ordered that the order is affirmed, with one bill of costs.
The law is well settled that "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 N.Y.2d 999, 1001). It is clear that the bulk of the complaint alleges negligent psychiatric care. In this light, neither the plaintiff's affidavits nor counsel's affirmations were sufficient to demonstrate merit, inasmuch as they are not medical experts qualified to offer an opinion on whether the out-patient psychiatric treatment, which the plaintiff received at the Westchester County Medical Center, and her involuntary commitment were deviations from proper medical practice. The unsworn psychologist's report, submitted on the plaintiff's behalf, was likewise insufficient (see, Hammer v. Hochberg, 128 A.D.2d 834, 836). The supplemental appellant's brief, and the medical affidavit dated approximately three months after the order appealed from which it contains, are not properly before the court (CPLR 5526; see, Recht v. Teuscher, App. Div., 2d Dept, Aug. 2, 1990).
It is apparent from the record that the plaintiff's counsel was well aware of the fact that the defendants were moving to dismiss the complaint due to the plaintiff's obstructive tactics and her continued refusal to answer deposition questions in contravention of court directives. Furthermore, the Supreme Court afforded the plaintiff ample time for the submission of opposition papers. The plaintiff nevertheless failed to oppose the dismissal motions. Under the circumstances, the Supreme Court properly determined that no reasonable excuse existed for the default.
While the plaintiff had no statutory obligation to furnish an affidavit of merit in connection with her opposition to the defendants' motions pursuant to CPLR 3126, we may nevertheless consider the absence of any showing of merit as a factor affecting our decision whether a sanction less drastic than dismissal might be warranted (see, Wolfson v. Nassau County Med. Center, 141 A.D.2d 815, 816). In view of the absence of a showing of merit and the plaintiff's continued refusal to answer proper deposition questions, we conclude that dismissal was the appropriate remedy here. Thompson, J.P., Kunzeman, Miller and Copertino, JJ., concur.