Opinion
March 11, 1996
Appeal from the Supreme Court, Nassau County (O'Connell, J.).
Ordered that the appeal from the order dated September 1, 1994, is dismissed, without costs or disbursements, as that order was superseded by the order dated September 27, 1994; and it is further,
Ordered that the order dated September 27, 1994, is reversed, on the law and the facts, without costs or disbursements, and the plaintiff's application to vacate the judgment entered July 25, 1994, is denied.
The Supreme Court entered a judgment dismissing the complaint after the plaintiff had failed to comply with a prior conditional order of preclusion and/or dismissal for failure to disclose. Since the order and subsequent judgment arose from a motion made on notice by the defendants and opposed by the plaintiff's attorneys of record, the plaintiff's proper remedy was by way of appeal rather than a motion to vacate (see, Pergamon Press v Tietze, 81 A.D.2d 831; see also, Schwenk v St. Peter's Hosp., 215 A.D.2d 906; Banner Serv. Corp. v Hall, 185 A.D.2d 613). Thus, the court erred in entertaining the plaintiff's application to vacate the judgment.
However, even if the conditional order of preclusion and subsequent judgment are deemed to have been entered by default, given the peculiar circumstances of this case and taking into consideration the nature of the papers submitted by the plaintiff's attorneys, it is clear that the plaintiff was not entitled to vacatur of the judgment. In order to obtain the relief that she requested, the plaintiff was required to establish both a reasonable excuse for her default and a meritorious claim (see, Montauk Automatic v Munhall, 201 A.D.2d 710;
Johnson v Heavy Realty Corp., 191 A.D.2d 538; Bender Bodnar v Nankin, 186 A.D.2d 524). The plaintiff's failure to submit an affidavit from a medical expert attesting to the merit of her malpractice claim was fatal to her application (see, Murdock v Center for Special Surgery, 199 A.D.2d 482; White v Leonard, 140 A.D.2d 518). Accordingly, her application should have been denied. Bracken, J.P., Balletta, Thompson and Hart, JJ., concur.