Bradstreet v. Kruger

Order unanimously reversed on the law with costs and matter remitted to Supreme Court, Lewis County, for further proceedings, in accordance with the following memorandum: Plaintiffs appeal from an order dismissing their medical malpractice action for failure to file timely a notice of malpractice action pursuant to CPLR 3406 (a) and failure to serve timely a certificate of merit pursuant to CPLR 3012-a. Supreme Court erred in dismissing the action for the failure to file timely the notice of malpractice action. Dismissal is not an authorized sanction for the failure to comply with the notice requirement of CPLR 3406 (a) (Tewari v Tsoutsouras, 75 NY2d 1). Although unconditional dismissal is an appropriate sanction for failure to serve a certificate of merit simultaneously with the complaint in a medical malpractice action (see, CPLR 3012-a; Kerns v Panahon, 158 AD2d 936; Matter of Prince v State of New York, 149 AD2d 963), on this record, we conclude that such relief should not have been granted. Defendants’ moving papers sought dismissal unless plaintiffs submitted an affidavit of merit within 30 days. Plaintiffs treated this request as an application for a conditional 30-day order, and thus, did not submit opposing papers. At oral argument, plaintiffs did request an extension of time to serve the necessary certificate and notice of malpractice action and to comply with the demand for discovery and for a bill of particulars. In our view, plaintiffs’ treatment of defendants’ motion as one for a conditional 30-day order was reasonable, and plaintiffs should have been afforded the opportunity to submit an affidavit of merit and an excuse for the failure to comply with CPLR 3012-a. Accordingly, we reverse the order and remit this matter to allow plaintiffs the opportunity to cross-move within 30 days for an extension of time to serve the certificate of merit and notice of malpractice action. (Appeal from order of Supreme Court, Lewis County, Parker, J.—dismiss action.) Present— Callahan, J. P., Doerr, Boomer, Green and Balio, JJ.