Grad v Hafliger

[*1] Grad v Hafliger 2009 NY Slip Op 52768(U) [27 Misc 3d 1226(A)] Decided on June 1, 2009 Supreme Court, Bronx County Kern, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 1, 2009
Supreme Court, Bronx County

Urve Mollerson Grad, as Executrix of the Estate of DAVID GRAD, Deceased and URVE MOLLERSON GRAD, Individually, Plaintiffs,

against

Silvia Hafliger, M.D., MAULI DESAI, M.D., ROBERT S. BROWN JR., M.D., and NEW YORK PRESBYTERIAN THE UNIVERSITY HOSPITALOF COLUMBIA AND CORNELL, Defendants.



304638/08



Attorneys for plaintiff

GELLER & SIEGEL, LLP

419 Park Ave. South, 7th Floor

New York, New York 10016

(212) 532-0532

Attorneys for Defendants MAULI DESAI, M.D., ROBERT S. BROWN, JR., M.D. and New York PRESBYTERIAN

AARONSON, RAPPAPORT, FEINSTEIN & DEUTSCH, LLP

757 Third Avenue

New York, New York 10017

(212) 593-6700

Attorneys for Defendant Silia Hafliger, M.D.

Callan, Koster, Brady, LLP

One Whitehall Street - 10th Floor

new York, NY 10004

212-248-8800

Cynthia Kern, J.

In this medical malpractice and wrongful death action, plaintiffs move pursuant to CPLR § 3406 and § 2004 for an extension of time to file a Notice of Medical Malpractice Action. [*2]Defendant Silvia Hafliger ("Hafliger") cross-moves to dismiss the complaint due to plaintiffs' failure to provide a Certificate of Merit in accordance with CPLR § 3102-a. For the reasons set forth below, plaintiffs' motion is granted and defendant Hafliger's motion to dismiss is denied.

The relevant facts are as follows. Plaintiff David Grad (the "decedent") was awaiting a liver transplant at Columbia Presbyterian Hospital in January 2006. The decedent was dismissed from the hospital and sustained a fall at home on January 20, 2006 and suffered a spinal cord injury resulting in paraplegia. Because of his spinal condition, he was not able to receive a liver transplant and died on June 30, 2007. This action was commenced on June 3, 2008. The summons and complaint were not accompanied by a CPLR § 3012-a Certificate of Merit and no CPLR § 3406 Notice of Medical Malpractice Action has been filed. Defendant Hafliger served an answer asserting the affirmative defense of failure to file a Certificate of Merit on August 7, 2008.

In opposition to Hafliger's motion to dismiss, plaintiffs served a Certificate of Merit signed by plaintiffs' counsel on March 2, 2009 and a physician's affirmation of merit attesting to the merits of the cause of action. The physician's name was redacted from the physician's affirmation and an unredacted copy was submitted to the court for in camera review. Counsel states that the reason for delay in filing the Certificate of Merit and Notice of Medical Malpractice Action was due to the fact that counsel was without a paralegal from approximately September 2008 to December 2008 and without a file clerk from June 2008 to September 2008. Counsel further states that a metal filing cabinet in the office collapsed and the file room was in disarray causing documents to be misfiled and misplaced.

Section 3406 (a) of the CPLR requires a plaintiff pursuing a medical malpractice action to file a Notice of Medical Malpractice Action within sixty days after issue is joined. The time for filing the Notice of Medical Malpractice Action may be extended by the court upon motion made pursuant to CPLR § 2004. See CPLR § 3406 (a). Section 2004 of the CPLR provides that the court may extend the time fixed by statute "upon good cause shown." On a motion to extend the time to file a Notice of Malpractice Action pursuant to CPLR § 3406, the court may excuse a delay or default resulting from law office failure "where there is no evidence that defendant was prejudiced by plaintiff's delay [and] plaintiff will be severely prejudiced if the motion is denied." See Goldberg v. Nathan Littauer Hosp. Ass'n, 160Misc 2d 571 (Sup. Ct. Albany Co. 1994). In this case, issue was joined by service of Hafliger's answer on August 7, 2008. Plaintiff's application to file a late Notice of Medical Malpractice Action was made on February 2, 2009, four months after it was due on October 7, 2008. There is no evidence that the relatively minimal four-month delay in filing the Notice of Medical Malpractice Action caused by law office failure prejudiced defendants. Accordingly, plaintiffs' motion to file a late Notice of Medical Malpractice Action is granted.

The next issue the court must address is defendant Hafliger's motion to dismiss plaintiff's complaint for failure to file a Certificate of Merit. Section 3012-a (a) of the CPLR requires that a complaint in a medical malpractice action be accompanied by "a certificate, executed by the attorney for the plaintiff, declaring that: (1) the attorney has reviewed the facts of the case and has consulted with at least one physician . . . and . . . has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action." Where the attorney, due to time limitations, has been unable to consult with a physician, the attorney [*3]must so state at the time the complaint is filed and must file the required Certificate of Merit within ninety days after service of the complaint. See CPLR § 3012-a (a) (2); See George v St. Johns Riverside Hospital, 162 AD2d 140 (1st Dept 1990). In order to avoid dismissal for failure to comply with CPLR § 3012-a , plaintiff must present a reasonable excuse for failure to comply with the statute and an affidavit of merit from a medical expert. Id. See also Santangelo v Raskin, 137 AD2d 74 (2d Dept 1988). Law office failure has been held to constitute a reasonable excuse for the failure to comply with CPLR § 3012-a because a plaintiff "should not be deprived of the important right to have his or her case decided on the merits because of law office failure where . . . the complaint has merit and the other party cannot show prejudice." Rossell v International Cosmetic Surgery, P.C., 2007 WL 3965766 (Sup. Ct. NY Co. 2007), quoting Kaufman v Bauer, 36 AD3d 481, 483 (1st Dept 2007).

In the instant case, defendant's motion to dismiss based on plaintiffs' failure to file a Certificate of Merit is denied as plaintiffs have sufficiently established a reasonable excuse and provided an affidavit of merit from a medical expert. Initially, plaintiffs' claim of law office failure is sufficient to establish a reasonable excuse. Plaintiffs have also made the required showing of merit by submitting the affirmation of a licensed and board certified doctor. The expert states that based upon his review of the decedent's medical records with respect to his treatment by defendants, his opinion within a reasonable degree of medical certainty is that the defendants deviated from accepted medical and hospital standards of care and treatment in negligently failing to treat and manage the decedent's various medical conditions so as to cause decedent to suffer a fall resulting in a spinal cord injury. The expert further states his opinion that the defendants' negligence was the proximate cause of the decedent's spinal cord injury and subsequent death. The court finds that this detailed affirmation constitutes a showing of merit sufficient to excuse plaintiff's technical non-compliance with the statute. See Rossell, supra .

Defendant's arguments regarding the impropriety of submitting the medical affirmation on reply are without merit in light of the extensive Appellate Division authority holding that dismissal due to non-compliance with CPLR § 3012-a may be avoided by submission of a medical affidavit of merit. See, e.g., George, supra , Santangelo, supra ; see also Kerns v Panohon, 158 AD2d 936 (4th Dept 1990). Furthermore, the court finds that the redaction of the name of plaintiffs' expert from the affirmation of merit is not fatal to the establishment of a meritorious action where an unredacted version was supplied to the court. See Gourdet v Hershfeld, 277 AD2d 422 (2d Dept 2000); Miller v Brust, 278 AD2d 462 (2d Dept 2000). Finally, the affidavit of merit is not insufficient to establish a meritorious cause of action due to the expert's failure to set forth credentials as a specialist. As the First Department has stated, " a physician need not be a specialist in a particular field if he nevertheless possesses the requisite knowledge necessary to make a determination on the issues presented." Joswick v Lenox Hill Hospital, 161 AD2d 352 (1st Dept 1990).

For the foregoing reasons, plaintiffs' motion to file a late Notice of Medical Malpractice Action is granted. Defendant Hafliger's motion to dismiss is denied. Plaintiffs shall file the Notice of Medical Malpractice Action within twenty days after notice of entry of this decision.

This constitutes the decision and order of the court.

Dated:Enter: _____________________ [*4]

J.S.C.