Smith v. McDaniel

163 A.D.2d 869

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1990
• Status: Published

Opinion

Order unanimously reversed on the law without costs, cross motion denied, motion granted and complaint dismissed. Memorandum: It was error for the court in this medical malpractice action to grant plaintiff’s motion for permission to serve a late certificate of merit and to deny defendant doctor’s motion to dismiss plaintiff’s complaint for failure to serve a certificate of merit with the complaint (see, CPLR 3012-a). Plaintiff’s failure to serve a certificate of merit with the complaint was a pleading default and dismissal is required absent a showing by plaintiff of a reasonable excuse for the default and a meritorious cause of action (see, Matter of Prince v State of New York, 149 AD2d 963, 964). Here, dismissal is required because plaintiff’s affidavits fail to establish a meritorious cause of action. Plaintiff’s expert failed to state that defendant doctor’s conduct deviated from acceptable standards of medical practice in the community, that his conduct was negligent or that any of defendant’s actions were a competent producing cause of any injuries sustained by plaintiff. Plaintiff’s complaint is therefore dismissed without prejudice to re-serve the complaint accompanied by the required certificate of merit (see, CPLR 205 [a]; Kerns v Panahon, 158 AD2d 936; Matter of Prince v State of New York, supra). (Appeal from order of Supreme Court, Niagara County, Gossel, J.—dismiss complaint.) Present—Dillon, P. J., Doerr, Boomer, Lawton and Davis, JJ.