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On 4 March 1986, plaintiff commenced a medical malpractice personal injury action


On 4 March 1986, plaintiff commenced a medical malpractice personal injury action against the defendant, a licensed physician, alleging that defendant was negligent in the care and treatment of plaintiff’s infant daughter and ultimately caused the child’s wrongful death.

In 1985, as part of a comprehensive reform of medical malpractice, the Legislature enacted CPLR 3406(a) which requires plaintiffs to file a notice of dental, medical or podiatric malpractice action within 60 days of joinder of issue. Plaintiff failed to timely file this notice. Thus, as a sanction, the Appellate Division dismissed the plaintiff’s complaint and reversed the lower court’s decision; the court found that plaintiff had failed to proffer a reasonable excuse for her eight-month delay in seeking an extension and had not demonstrated the merit of her claims.

The Issues:

Was the dismissal by the Appellate Division proper?

The Ruling:

Here, defendant seeks dismissal of plaintiff’s complaint as a sanction for plaintiff’s failure to timely file the said notice rather than for any of the grounds for dismissal enunciated in CPLR 3211. Nonetheless, as with any other sanction, the courts of the herein State are empowered to grant the sanction of dismissal only when it has been authorized either by the Legislature or by court rules consistent with existing legislation. Sanctions may not be imposed by ad hoc judicial decision-making.

Upon a review of the relevant statutes and rules, the Nassau and Suffolk court can discern no authority for imposition of the sanction of dismissal for a plaintiff’s noncompliance with the notice requirement of CPLR 3406(a). Besides, to allow the imposition of the sanction of dismissal may very well create the problems the Legislature sought to remedy and would contravene the purpose of the Medical Malpractice Reform Act. Neither the plain language of CPLR 3406(a) nor the structure of the newly enacted procedural scheme supports the conclusion that the Legislature intended dismissal to be a sanction for failure to timely file the notice. Moreover, consistent with the statute, the rules promulgated by the Chief Administrator do not authorize dismissal as a sanction for noncompliance with the notice requirement of CPLR 3406(a). While the rule tracks the requirement of CPLR 3406(a) and 2004 that an extension be granted only upon good cause shown, the rule authorizes only the imposition of conditions upon the granting of the extension. Outright dismissal upon a denial of the motion to extend cannot be viewed as such a condition because it immediately terminates the action and is not, in any way, conditional. Furthermore, like the statute, the rule authorizes dismissal of an action as a sanction only for noncompliance with the provisions relating to the pre-calendar conference. The standard for extensions of time articulated in CPLR 2004 does not provide any legislative authority for the dismissal of a plaintiff’s complaint solely upon a failure to timely file the CPLR 3406(a) notice. That statute merely confers discretion upon the courts to either grant or deny a motion to extend time limits set in the CPLR, including the 60-day time period set forth in CPLR 3406(a). Where the extension sought is not an extension of the time to file a pleading, dismissal is not a necessary consequence of a denial of the motion.

Undoubtedly, the aforesaid construction of the legislative scheme is consistent with the underlying purposes of the tort reforms enacted in 1985. Although the reforms were intended, in part, to expedite malpractice litigation, as has been noted by some trial courts, the CPLR 3406(a) notice has itself become the subject of extensive pretrial litigation. To allow dismissal as a sanction for failure to timely file the CPLR 3406(a) notice would promote even more litigation on this collateral issue by encouraging defendants to litigate every instance of noncompliance. Indeed, defense counsel’s obligation to zealously represent his or her client might well require that defense counsel seize the opportunity to attempt to obtain a dismissal on a mere showing of noncompliance with CPLR 3406(a) rather than risking a disposition on the merits (Code of Professional Responsibility DR 7-101). Moreover, dismissal may completely nonsuit the plaintiff as defendants commonly wait until after the expiration of the relatively short Statute of Limitations in medical malpractice actions to seek dismissal for noncompliance with CPLR 3406(a). In this case, for example, defendants waited six months before seeking dismissal of plaintiff’s complaint and after the Appellate Division granted that relief, plaintiff commenced a second action which was held to be time barred. Thus, the Legislature never contemplated the imposition of such a draconian sanction for noncompliance, particularly, where the practical effect of such a sanction would defeat the very purpose of the Medical Malpractice Reform Act. 3

All the same, when a notice is not timely filed, a defendant truly seeking expeditious resolution of the underlying malpractice claim may move, even by order to show cause, to compel the filing of the notice. Once a defendant has obtained an order directing that the notice be filed, a plaintiff’s disregard of such order may be deemed willful and construed as a deliberate effort to frustrate the calendar control rules promulgated under CPLR 3406(b). It is only in that case that a dismissal would be warranted. It would be a disregard of a court order directing the filing of the notice and its attendant authorizations.

In conclusion, the court finds that the Legislature has not authorized the imposition of the sanction of dismissal for noncompliance with the statutory notice requirement of CPLR 3406(a). The plain language of CPLR 3406 and the rules promulgated thereunder do not provide any authority for the imposition of the sanction of dismissal. The legislative history of the statute do not suggest that the Legislature intended that dismissal be an authorized sanction for a plaintiff’s failure to timely file the notice. The authority to dismiss cannot be implied. Thus, the Appellate Division erred in dismissing plaintiff’s complaint.

Additionally, the Appellate Division abused its discretion in analogizing the failure to timely file the CPLR 3406(a) notice to a pleading default and holding that plaintiff’s motion for an extension must be denied because she had not demonstrated both the meritorious nature of her claims and a reasonable excuse for the delay. Failure to timely file the CPLR 3406(a) notice is not analogous to a pleading default. The notice requirement is a rule of calendar practice which functions to trigger the pre-calendar conference required by CPLR 3406(b). Unlike pleadings, the notice does not serve to apprise the adversary of a pending cause of action and imposes no obligation upon the adversary which may result in a default judgment against him or her. The stringent showing required to obtain an extension of time to file a pleading by a party already in default has no application here and plaintiff’s motion does not fail simply because she did not submit an affidavit of the merit of her claims.

In the instant case, in seeking an extension after the time to file had passed, plaintiff averred that she did not deliberately fail to comply with the directives of the statute but was awaiting production of voluminous medical records to properly answer defendant’s demand for a Bill of Particulars, and serve defendant with the appropriate authorizations. This excuse amounts to little more than law office failure, especially since defendant had repeatedly demanded the authorizations. The court sees no reason to impose a more stringent requirement for the showing of good cause under CPLR 2004, particularly where, as here, there is no evidence that defendant was at all prejudiced by plaintiff’s delay while plaintiff will be severely prejudiced if the motion is denied.

In sum, the order of the Appellate Division is reversed, with costs, and the order of the Supreme Court is reinstated.

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