Summary
holding that defendant's motion to dismiss based on plaintiff's failure to serve a certificate of merit, as required by CPLR 3012-a, was properly denied, and it afforded plaintiff 30 days to comply with the statute
Summary of this case from TESHER v. SOL GOLDMAN INVESTMENTS, LLCOpinion
July 14, 1992
Appeal from the Supreme Court, Monroe County, Richard D. Rosenbloom, J.
Robert J. Hirsch, P.C. (Christopher Noone of counsel), for appellant.
Richard G. Baxter for respondent.
In this cause of action for medical malpractice, Supreme Court properly denied defendant's motion to dismiss based on plaintiff's failure to serve a certificate of merit as required by CPLR 3012-a, and afforded plaintiff 30 days to comply with the statute.
In addressing a similar issue in Tewari v Tsoutsouras ( 75 N.Y.2d 1), the court held that there is no authority for imposing the sanction of dismissal for a plaintiff's failure to file the malpractice notice required by CPLR 3406 (a) and that it was error to treat such failure as a pleading default.
Subsequently, in Kolb v Strogh ( 158 A.D.2d 15, 16), the Second Department, applying the rule of Tewari (supra) to a failure to file the certificate of merit required by CPLR 3012-a, held that "[a] procedural default may be punished only by means which are specifically authorized by statute or by rule * * * and it is clear that neither statute nor rule authorizes dismissal of the action as a sanction for a violation of CPLR 3012-a." As a consequence, the court stated that it would no longer follow the rationale of its decision in Santangelo v Raskin ( 137 A.D.2d 74), a case which this court has previously followed.
We agree that a failure to comply with CPLR 3012-a is analogous to noncompliance with CPLR 3406 (a) and that the sanction of dismissal is therefore unwarranted. Consequently, to the extent that our prior decisions in Smith v McDaniel ( 163 A.D.2d 869), Kerns v Panahon ( 158 A.D.2d 936) and Matter of Prince v State of New York ( 149 A.D.2d 963) are not in accord with this determination, they will no longer be followed.
Supreme Court, therefore, properly exercised its discretion to extend for 30 days the time to file the CPLR 3012-a certificate (CPLR 2004). The sanction of dismissal is, of course, still available should plaintiff fail to comply with Supreme Court's order.
Accordingly, the order should be affirmed.
BOOMER, J.P., PINE, BOEHM, FALLON and DAVIS, JJ., concur.
Order unanimously affirmed, without costs.