Cheiban v. Long Island College Hospital

Appellate Division of the Supreme Court of New York

Cheiban v. Long Island College Hospital

166 A.D.2d 494, 560 N.Y.S.2d 693, 1990 N.Y. App. Div. LEXIS 12542

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 9, 1990

StatusPublished

This text of 166 A.D.2d 494 (Cheiban v. Long Island College Hospital) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cheiban v. Long Island College Hospital, 166 A.D.2d 494, 560 N.Y.S.2d 693, 1990 N.Y. App. Div. LEXIS 12542 (N.Y. Ct. App. 1990).

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Opinion

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated June 1, 1989, which denied its motion to dismiss the action on the ground that the plaintiff failed to comply with CPLR 3406 (a) and 3012-a and granted the plaintiff’s cross motion for leave to cure his defaults.

Ordered that the order is affirmed, with costs.

The Court of Appeals has held that dismissal is not an authorized sanction for a plaintiff’s failure to file a timely notice of medical malpractice action pursuant to CPLR 3406 (a) (see, Tewari v Tsoutsouras, 75 NY2d 1). Therefore, the Supreme Court properly denied the defendant’s motion to dismiss the complaint on that ground. Furthermore, we have held that the sanction of dismissal is also not authorized for a violation of the plaintiff’s duty to serve a certificate of merit pursuant to CPLR 3012-a (see, Kolb v Strogh, 158 AD2d 15). Accordingly, the court properly permitted the plaintiff to file a late notice and certificate of merit. Thompson, J. P., Brown, Balletta, Miller and O’Brien, JJ., concur.

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In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated June 1, 1989, which denied its motion to dismiss the action on the ground that the plaintiff failed to comply with CPLR 3406 (a) and 3012-a and granted the plaintiff’s cross motion for leave to cure his defaults.

Ordered that the order is affirmed, with costs.

The Court of Appeals has held that dismissal is not an authorized sanction for a plaintiff’s failure to file a timely notice of medical malpractice action pursuant to CPLR 3406 (a) (see, Tewari v Tsoutsouras, 75 NY2d 1). Therefore, the Supreme Court properly denied the defendant’s motion to dismiss the complaint on that ground. Furthermore, we have held that the sanction of dismissal is also not authorized for a violation of the plaintiff’s duty to serve a certificate of merit pursuant to CPLR 3012-a (see, Kolb v Strogh, 158 AD2d 15). Accordingly, the court properly permitted the plaintiff to file a late notice and certificate of merit. Thompson, J. P., Brown, Balletta, Miller and O’Brien, JJ., concur.

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Bluebook (online)

166 A.D.2d 494, 560 N.Y.S.2d 693, 1990 N.Y. App. Div. LEXIS 12542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheiban-v-long-island-college-hospital-nyappdiv-1990.

Opinion

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