Jacoby v. Veloso

162 A.D.2d 501, 558 N.Y.S.2d 833, 1990 N.Y. App. Div. LEXIS 7299

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 1990
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Amann, J.), dated November 23, 1988, which granted the defendant’s motion to dismiss the complaint for the plaintiffs’ failure to comply with CPLR 3012-a.

Ordered that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, the motion is denied, the action is reinstated, and the parties are directed to complete disclosure as quickly as possible.

The Supreme Court improvidently exercised its discretion by granting the defendant doctor’s motion to dismiss the plaintiffs’ medical malpractice action on account of the plaintiffs’ failure to serve a CPLR 3012-a certificate of merit with the complaint.

The sanction of dismissal for a violation of CPLR 3012-a is not authorized by statute or rule (Kolb v Strogh, 158 AD2d 15 [decided herewith]; see also, Tewari v Tsoutsouras, 75 NY2d 1). Moreover, dismissal is unwarranted in the present case since the plaintiff belatedly provided the equivalent of notice pursuant to CPLR 3012-a in her papers in opposition to the motion.

Both parties are guilty of delay in proceeding to trial and are directed to complete pretrial disclosure as quickly as possible. Hooper, J. P., Harwood, Rosenblatt and Miller, JJ., concur. [See, 141 MisC 2d 958.]