Opinion
October 20, 1994
Furey, Furey, Lapping, Demaria Petrozzo, Hempstead (Jane Himelfarb of counsel), for defendant.
Leonard E. Harmon, plaintiff pro se.
Defendant Huntington Hospital moves for an order dismissing the action because plaintiff failed to provide an adequate certificate of merit in that the certificate appended to the complaint did not recite that the plaintiff had conferred with a physician as required by the statute but instead recited that the plaintiff had conferred with a physician and/or nurse.
Plaintiff Leonard Harmon, relying on CPLR 3012-a (f), opposes the motion on the ground that since he is appearing pro se he is not required to serve a certificate of merit. Plaintiff has however indicated that if so ordered he is prepared to serve a new certificate of merit because he has in fact conferred with more than one physician as well as with various nurses.
CPLR 3012-a (f) provides that the provisions pertaining to the need to serve a certificate of merit are inapplicable "to a plaintiff who is not represented by an attorney." The hospital takes the position that since the plaintiff is an attorney he must serve a certificate of merit. The plaintiff claims that since all papers, including the pleadings, list him as "plaintiff, pro se" he is not required to file a certificate of merit.
The Legislature found that requiring a certificate of merit would "improve the quality of medical malpractice adjudications and deter the commencement of frivolous cases." (L 1986, ch 266, § 1.) The Bill Jacket does not set forth a reason for the exemption for pro se litigants. However, one commentator has suggested that the certificate of merit requirement is inapplicable to a pro se plaintiff (not because of any lack of knowledge, experience or resources, but) because "[a]n infestation of plaintiffs representing themselves in medical malpractice actions is not among the judiciary's current problems." (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3012-a:1, at 715.) This appears to be a valid conclusion since the Legislature, if it believed that it was too difficult for a pro se plaintiff to consult with a physician in a malpractice case, would have promulgated a statute exempting pro se plaintiffs in malpractice cases from the requirements that they establish their claims of malpractice or rebut substantive summary judgment motions through the use of a medical expert. Since the Legislature has not so acted, it is logical to presume that CPLR 3012-a was aimed at reducing frivolous suits commenced by attorneys on behalf of their clients. In light of the foregoing, plaintiff pro se was not required to serve a certificate of merit. Thus the hospital's motion seeking dismissal is denied.
[Portions of opinion omitted for purposes of publication.]