Negron v. Hospital of Albert Einstein College of Medicine

Plaintiffs bring this medical malpractice action against the Hospital of the Albert Einstein College of Medicine (HAE-COM), alleging malpractice during the birth of the infant plaintiff on November 10, 1984. Plaintiffs served a summons and verified complaint, which were received by HAECOM in February 1986. HAECOM served its verified answer together with various demands for discovery on March 20, 1986. Plaintiffs failed to respond to these discovery demands until sometime in May 1988, at which time plaintiffs sent medical authorizations to HAECOM from the treating institutions. In addition, by virtue of issue having been joined by HAE-COM’s service of its answer on March 20, 1986, a notice of medical malpractice action was required to be filed by plaintiffs, pursuant to CPLR 3406 (a), "[n]ot more than sixty days after issue is joined”, i.e., by May 19, 1986. The time for filing such notice may be extended by the court only upon a motion made pursuant to CPLR 2004, which permits extensions of time upon such terms as may be just and upon good cause shown. However, the notice was never filed. Thereafter, on May 18, 1988, plaintiffs moved for leave to 409 file a late notice with the excuse of law office failure and the claim of lack of prejudice to HAECOM. The motion was granted and, upon renewal, that decision was adhered to. In accordance with the recent Court of Appeals decision in Tewari v Tsoutsouras (75 NY2d 1), we find a proper exercise of the IAS court’s discretion and no basis for dismissing the complaint. However, in light of the two-year delay caused by plaintiffs’ failure to file the required notice, we deem it appropriate to condition any extension of time to file such notice upon the imposition of a monetary sanction. (See, Marte v Montefiore Med. Center, 142 Misc 2d 745, 748.) Therefore, a sanction of $750 shall be paid by plaintiffs’ counsel to HAE-COM as a condition of the granting of the motion. Concur— Kupferman, J. P., Ross, Kassal, Smith and Rubin, JJ.