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Deceased Infant’s Estate Brings an Action


This appeal involves new legislation that concerns medical malpractice actions. The issue before the Supreme Court Appellate Division is whether or not the plaintiff’s failure to timely file a notice of the medical malpractice action was properly excused by the Supreme Court.

Case Facts

In March of 1986, the Queens plaintiff individually and as the administrator of her deceased infant’s estate started this action to recover damages for her daughter’s death as well as the conscious pain and suffering predicated by the Staten Island defendant physician’s alleged medical malpractice that resulted in the death of the infant.

In June of 1986, the defendant served an answer and sought discovery including the authorizations of all treating doctors’ records including hospital records and charts. The defendant also demanded a bill of particulars.

During a period of fourth months the defendant’s counsel requested authorizations from the plaintiff for the records that concerned the infant’s admissions. The counsel for the plaintiff does not dispute that the received this correspondence, but did not respond to it.

In March of 1987, the defendant moved for an order to dismiss the complaint on the basis that the plaintiff had failed to file a notice of medical malpractice action within 60 days and that the plaintiff had not made an application to extend her time to file the required notice.

Court Discussion and Decision

The original order made by the Supreme Court was in favor of the plaintiff and allowed an extension to be filed after the statute of limitations.

After reviewing all of the facts that have been presented in the case the court finds that the Supreme Court acted out of their discretion when they allowed the plaintiff to file a late CPLR notice. For this reason, the defendant’s motion to dismiss the complaint should be granted and the complaint against the defendant should be dismissed.

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