Arias v Vecchione, 2024 NY Slip Op 00930 [224 AD3d 568]

February 22, 2024

Appellate Division, First Department

[*1]

Virginia Arias et al., Appellants,

v

John Vecchione, DDS, et al., Respondents, et al., Defendants.

Kenneth J. Gorman, New York, for appellants.

Amabile & Erman, P.C., Staten Island (Stephanie M. Berger of counsel), for John Vecchione, DDS, respondent.

Kaufman Borgeest & Ryan LLP, New York (Brennan P. Breeland of counsel), for American Dental Offices, PLLC, respondent.

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. , 89 NY2d 499, 503 [1997]; Garcia v Del Pacifico , 299 AD2d 188 [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 AD3d 278 , 281-283 [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 AD3d 479 [1st Dept 2009]).

In view of the foregoing, we do not address plaintiffs’ further contentions. Concur—Oing, J.P., Kapnick, Kennedy, Mendez, Higgitt, JJ..