Opinion
2003-645 RIC.
Decided March 31, 2004.
Appeal by plaintiff from an order of the Civil Court, Richmond County (J. McMahon, J.), entered February 20, 2003, which granted defendant's motion to dismiss the complaint due to plaintiff's failure to file a certificate of merit pursuant to CPLR 3012-a.
Order unanimously modified by providing that defendant's motion to dismiss the complaint is denied on condition that within 45 days from the date of the order hereon plaintiff's attorney pay $750 as attorney's fees to defendant and file a certificate of merit, otherwise motion granted; as so modified, affirmed without costs.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
In the instant medical malpractice action, although plaintiff filed a certificate of merit, it was filed before plaintiff received a copy of the medical records maintained by defendant, a hospital. In an order entered September 5, 2002, the court granted a motion by defendant to vacate the certificate of merit on condition that defendant serve its medical records within 90 days. The order further directed plaintiff to serve a certificate of merit within 90 days after receipt of the medical records. After plaintiff failed to serve a certificate of merit despite receiving defendant's medical records, defendant moved to dismiss the action. Plaintiff appeals from the order which granted defendant's motion.
Dismissal of an action is typically not available for failure to file a certificate of merit in the first instance ( see Tewari v. Tsoutsouras, 75 NY2d 1; Rice v. Vandenebossche, 185 AD2d 336; Kolb v. Strogh, 158 AD2d 15; cf. Horn v. Boyle, 260 AD2d 76). However, because the court previously entered an order directing plaintiff to file a certificate of merit, dismissal is available as a possible sanction ( see Tewari, 75 NY2d at 10-11; Kolb, 185 AD2d at 22). Nevertheless, since dismissal is a severe sanction which will penalize plaintiff for the conduct of her counsel, we find that dismissal of the action was an abuse of discretion and a lesser sanction is warranted. Inasmuch as plaintiff's attorney's apparently willful failure to comply with an order of the court caused defendant to incur attorney's fees and costs with respect to the underlying motion and the instant appeal, denial of defendant's motion to dismiss is conditioned upon plaintiff's attorney filing a certificate of merit and paying defendant $750 as attorney's fees ( see CPLR 3126; see e.g. Summit Waterproofing Restoration Corp. v. Scarsdale Country Estates Owners, 228 AD2d 431).