Fittipaldo v. Gal

159 A.D.2d 481, 552 N.Y.S.2d 850, 1990 N.Y. App. Div. LEXIS 2520

Opinion

In a medical malpractice action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Bangs County (Scholnick, J.), dated February 8, 1989, which granted the defendant’s motion to dismiss the action on the ground that the plaintiff failed to file a timely notice of medical malpractice action pursuant to CPLR 3406 (a).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.

As recently held by the Court of Appeals, the dismissal of an action is not authorized on the ground that the plaintiff failed to file a timely notice of medical malpractice action pursuant to CPLR 3406 (a) (see, Tewari v Tsoutsouras, 75 NY2d 1). Since a decision was not made concerning the plaintiff’s cross motion for leave to file a late notice of medical malpractice action pursuant to CPLR 3406 (a), the matter is remitted to the Supreme Court, Kings County, for a determination of the plaintiff’s cross motion, and, if appropriate, consideration of monetary sanctions pursuant to 22 NYCRR 202.56 (a) (3) (see, Tewari v Tsoutsouras, 75 NY2d 1, 11, supra). Lawrence, J. P., Rubin, Sullivan and Balletta, JJ., concur.