Opinion
October 9, 1990
Appeal from the Supreme Court, Westchester County (Burrows, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, the defendant's motion is denied, the plaintiff's cross motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings; and it is further,
Ordered that the plaintiff shall file the notice of medical malpractice action within 15 days after service upon her of a copy of this decision and order, with notice of entry.
While this appeal was pending, the Court of Appeals ruled that dismissal of an action is not a proper sanction for a plaintiff's failure to file a timely notice of medical malpractice action pursuant to CPLR 3406 (a) (see, Tewari v. Tsoutsouras, 75 N.Y.2d 1). Therefore, the provision of the Supreme Court's order which dismissed the complaint on that ground is reversed. The court in Tewari v. Tsoutsouras (supra), also held that a plaintiff in a medical practice action need not demonstrate the meritorious nature of her claim in order to obtain an extension of time to file the notice. Therefore, the provision of the Supreme Court's order which denied the plaintiff's cross motion for an extension of time on that ground is also reversed. We grant the plaintiff leave to file a late notice promptly in accordance herewith. Thompson, J.P., Brown, Balletta, Miller and O'Brien, JJ., concur.