Defelice v New York Eye & Ear Infirmary

[*1] Defelice v New York Eye & Ear Infirmary 2004 NY Slip Op 51590(U) Decided on November 1, 2004 Supreme Court, New York County Bransten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2004
Supreme Court, New York County

MARIE DEFELICE and ANTHONY DEFELICE, Plaintiffs,

against

THE NEW YORK EYE AND EAR INFIRMARY and SETH MESKIN, M.D., Defendants.



110333/04

Eileen Bransten, J.

Defendant New York Eye and Ear Infirmary ("Infirmary") moves to: dismiss the complaint against it by plaintiffs Marie DeFelice ("Mrs. DeFelice") and Anthony DeFelice ("Mr. DeFelice") pursuant to CPLR 3211(a)(8) and 3012-a for failure to serve a certificate of merit; order plaintiffs to present a physician's affidavit evidencing a meritorious cause of action pursuant to CPLR 3012-a; and, pursuant to CPLR 3017(c), strike paragraphs nineteen and twenty-two of Plaintiffs' Complaint with regard to money damages.[FN1]

Background

In this medical malpractice action, plaintiffs claim that defendants failed to diagnose or treat Mrs. DeFelice's stroke and that as a result of this failure, Mrs. DeFelice suffered severe injury, including another stroke. Affirmation in Support of Motion to Dismiss ("Aff."), Ex. A, at 3. Plaintiffs commenced this action on July 15, 2004, by filing a Summons and Complaint, and served defendants on July 26, 2004. Aff., at ¶ 3. The Complaint contained no certificate of merit. Id. Additionally, in paragraph nineteen of Plaintiffs' Complaint it states that Mrs. DeFelice, "because of said injuries[,] has been damaged in the sum of one-million dollars ($1,000,000.00)." Paragraph twenty-two further states, "as a result [Mr. DeFelice] has sustained loss and damage in the sum of $500,000.00)," and "plaintiff demands judgment against the defendants and each of them in the sum of $500,000.00." Aff., at ¶ 4.

On August 13, 2004, defendants filed this motion to dismiss. Plaintiffs responded by [*2]serving a certificate of merit dated July 15, 2004, which states, "I have reviewed the medical records *** and in consulting with the referring Attorney, a former licensed provider of medical services, *** the records *** show a failure of proper medical care under the circumstances." Plaintiffs' Affirmation in Opposition ("Opp."), Ex. B, at 1. Plaintiffs state that they inadvertently failed to include this certificate of merit in their original complaint. After defendants rejected the first certificate of merit as insufficient, plaintiffs filed an amended affirmation in their reply papers that states, "I have reviewed the medical records *** and in consulting with the referring Attorney, a license [sic] provider of medical services, who has reviewed the aforementioned records and has consulted with a duly licensed physician and surgeon in the State of New York, that the records of the Defendant Hospital, on their face show a failure of proper medical care under the circumstances."

Opp., Ex. C, at 1.

Infirmary now moves: for dismissal of this action pursuant to CPLR 3211(a)(8) and 3012-a for failure to serve a certificate of merit; for an order directing plaintiffs to present a physician's affidavit evidencing a meritorious cause of action pursuant to CPLR 3012-a; and, pursuant to CPLR 3017(c), to strike paragraphs nineteen and twenty-two of Plaintiffs' Complaint with regard to money damages. Aff., at ¶ 2.

Analysis

CPLR 3012-a(1) provides that, "in any action for medical *** malpractice, the complaint shall be accompanied by a certificate, executed by the attorney for the plaintiff declaring that the attorney *** has consulted with at least one physician." The question of whether the court may dismiss the action violation of CPLR 3012-a, however, is in dispute among the Departments.

In Santangelo v. Raskin, 137 AD2d 74 (2d Dep't 1988), the Second Department held that failure to timely serve a certificate of merit pursuant to CPLR 3012-a amounts to a default and upon defendant's motion, warrants dismissal. The court stated that to defeat defendant's motion to dismiss, plaintiff must prove reasonable excuse for the failure and provide a certificate of merit from a physician. Id. The Fourth Department held similarly in Prince v. State, 149 AD2d 963 (4th Dep't 1989), but clarified that the dismissal would not be "on the merits."

In 1989, the Court of Appeals in Tewari v. Tsoutsouras, 75 NY2d 1 (1989), concluded that the court has no power to dismiss an action for failure to timely serve a notice of medical malpractice pursuant to CPLR 3406(a), but can only grant or deny plaintiffs an extension of time to file the notice. Id. at 9. The court stated that a trial court may only dismiss a complaint for failure to comply with a court order, not for failures under CPLR 3406(a). Id. at 12. Nonetheless, the Court of Appeals did not specifically address the failure to file a certificate of merit pursuant to CPLR 3012-a. Id.

[*3]In response to Tewari, the Second Department reversed itself in Kolb. v. Strogh, 158 AD2d 15 (2d Dep't 1990), and held that Tewari prohibits the dismissal of a complaint for failure to file a certificate of merit under CPLR 3012-a. See also, Rice v. Vandenbossche, 185 AD2d 336, 338 (2d Dep't 1992).

That same year, in Perez v. Lenox Hill Hosp., 159 AD2d 251 (1st Dep't 1990), the First Department, declining to follow Kolb and citing Santangelo, granted defendants' motion to dismiss because plaintiff failed to timely file a certificate of merit. Id. at 251. The court stated that failure to comply with CPLR 3012-a is grounds for dismissal unless the plaintiff can demonstrate reasonable excuse for the delay or a meritorious cause of action. Id. Again, in George v. St. John's Riverside Hosp., 162 AD2d 140 (1st Dep't 1990), the First Department cited Santangelo and granted defendants' motion to dismiss because plaintiff failed to file a certificate of merit until after defendants moved to dismiss. Id. The court stated that in order to avoid dismissal, the plaintiff needed to show "a reasonable excuse for failure to comply with the statute and an affidavit of merit from a medical expert." Id. at 140. In neither case did the court mention Tewari. Id.

Indeed, the First Department has never applied Tewari to CPLR 3012-a. For example, in Boothe v. Lawrence Hosp., 188 AD2d 435 (1st Dep't 1992), the court denied defendants' motion to dismiss based on plaintiffs' failure to timely serve a certificate of merit because, among other things, the court had already granted plaintiff leave to serve an amended complaint omitting any reference to medical malpractice, and therefore, a certificate of merit was no longer required. Id. at 436. The court did not state it lacked power to grant a dismissal nor did it mention Tewari. Id.; see also, DeLeon v. Sonin & Genis, 303 AD2d 291 (1st Dep't 2003) (denying defendants' motion but making no mention of Tewari or lack of power to dismiss complaint); Bowles v. State, 208 AD2d 440, 443 (1st Dep't 1994) (giving plaintiffs 30 days to file the certificate, citing Kolb, but making no mention of Tewari or lack of power to dismiss); Martin v. Montefiore Med. Ctr., 161 AD2d 526 (1st Dep't 1990) (denying defendants' motion to dismiss because defendants did not provide medical records, citing Santagelo but making no mention of Tewari or lack of power to dismiss).

Based on the First Department's repeated reliance on Santangelo, this Court has the power to dismiss the complaint unless plaintiffs demonstrate reasonable excuse for the delay and provide an affidavit from a medical expert.

Here, plaintiffs' certificates of merit are plainly insufficient. For example, the affidavit dated July 15, 2004, states that plaintiffs' attorney consulted with a referring attorney who happens to be a "former licensed provider of medical services." See, Opp., Ex. B. It does not state that there has been any consultation with a presently licensed medical provider, nor does it even state that the "provider" is a physician as required by CPLR 3012-a(1). Id. Plaintiffs' second certificate of merit is similarly insufficient because it states that plaintiffs' attorney consulted plaintiffs' former attorney, who consulted a licensed physician. See, Opp., Ex. C. Again, the affidavit never states that the attorney responsible for this case directly contacted a physician or that the physician reviewed all the medical records. Id. Nor [*4]is there an affirmation from any attorney directly stating that he spoke with a physician. Id.

Because plaintiffs have violated CPLR 3012-a by failing to file an appropriate certificate of merit, they must prove reasonable excuse for the failure and submit an affidavit from a physician establishing that the case has merit. They have done neither in their reply; indeed, they state that their failure to attach the first certificate of merit was inadvertent but give no excuse for the insufficiency of the second. See, Opp. Therefore, this Court must grant Infirmary's motion to dismiss.

Additionally, Infirmary points out that the complaint improperly includes an ad damnum clause. The complaint is being dismissed for non-compliance with CPLR 3012-a, for failure to provide a reasonable excuse for the deficiency, as well as failure to establish that the case is meritorious. Nonetheless, for future reference, plaintiffs' counsel must be aware that when a complaint sounds in medical malpractice, CPLR 3017(c) prohibits plaintiffs from placing an ad damnum clause (clause alleging specific monetary damages) in their complaint. The remedy if plaintiffs do include an ad damnum clause in their complaint is to strike the offensive language and replace it with a request for relief "in a sum exceeding the monetary amount of all lower courts." Boothe v. Lawrence Hosp., 188 AD2d, at 435; see also, Rice v. Vandenebossche, 185 AD2d, at 338; Raus v. White Plains Hosp., 156 AD2d 354 (2d Dep't 1989).Accordingly, it is

ORDERED that Infirmary's motion to dismiss is granted. The action is dismissed and the Clerk is respectfully directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

Dated: New York, New York November _____, 2004

E N T E R

Hon. Eileen Bransten

Footnotes

Footnote 1: Seth Meskin, M.D. ("Dr. Meskin") was never served in this case. See, Plaintiffs' Affidavit of Due Diligence For Summons and Verified Complaint. Therefore, he is not a defendant to this action.