Opinion
2018–03568 Index No. 10839/16
06-12-2019
Valerie PERCIVAL, Respondent, v. NORTHWELL HEALTH SYSTEM, et al., Appellants, et al., Defendants.
Benvenuto & Slattery (Rubin Sheeley Paterniti Gonzalez Kaufman LLP, New York, N.Y. [James W. Tuffin ], of counsel), for appellants. Bergstein & Ullrich, LLP, New Paltz, N.Y. (Stephen Bergstein of counsel), for respondent.
Benvenuto & Slattery (Rubin Sheeley Paterniti Gonzalez Kaufman LLP, New York, N.Y. [James W. Tuffin ], of counsel), for appellants.
Bergstein & Ullrich, LLP, New Paltz, N.Y. (Stephen Bergstein of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for medical malpractice, the defendants Northwell Health System, North Shore LIJ Glen Cove Hospital, North Shore University Hospital, and Dehdashti Amir appeal from an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), dated January 16, 2018. The order, insofar as appealed from, denied those defendants' motion pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them for failure to timely serve a complaint, and, sua sponte, pursuant to CPLR 3012(d), extended the plaintiff's time to serve a complaint upon those defendants and compelled those defendants to accept the complaint.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, pursuant to CPLR 3012(d), extended the plaintiff's time to serve the complaint upon the defendants Northwell Health System, North Shore LIJ Glen Cove Hospital, North Shore University Hospital, and Dehdashti Amir, and compelled those defendants to accept the complaint, is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is reversed insofar as appealed from, on the law, and the motion of the defendants Northwell Health System, North Shore LIJ Glen Cove Hospital, North Shore University Hospital, and Dehdashti Amir pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them for failure to timely serve a complaint is granted; and it is further,
ORDERED that one bill of costs is awarded to the appellants.
On December 23, 2016, the plaintiff, appearing pro se, commenced this action by filing an amended summons with notice. On April 18, 2017, the defendants Northwell Health System, North Shore LIJ Glen Cove Hospital, North Shore University Hospital, and Dehdashti Amir (hereinafter collectively the moving defendants) served a demand for a complaint. By notice of motion dated May 25, 2017, the moving defendants moved pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them for failure to timely serve a complaint. The plaintiff opposed the motion and served a complaint on June 26, 2017. Insofar as asserted against the moving defendants, the complaint sounded in medical malpractice. The Supreme Court denied the moving defendants' motion and, sua sponte, pursuant to CPLR 3012(d), extended the plaintiff's time to serve the complaint and compelled the defendants to accept the complaint. The moving defendants appeal.
"To avoid dismissal for failing to timely serve a complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under CPLR 3012(d), a plaintiff has to demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action" ( Ganchrow v. Kremer , 157 A.D.3d 771, 772, 69 N.Y.S.3d 352 ; see Harris v. City of New York , 121 A.D.3d 852, 854–855, 995 N.Y.S.2d 578 ; Mitrani Plasterers Co., Inc. v. SCG Contr. Corp. , 97 A.D.3d 552, 947 N.Y.S.2d 339 ). Here, even assuming that the plaintiff had a reasonable excuse for the delay in serving a complaint, she failed to demonstrate that she has a potentially meritorious cause of action against the moving defendants. "Since the plaintiff's medical malpractice claim is predicated upon matters not within the ordinary experience and knowledge of laymen, expert medical opinion evidence is required to demonstrate merit" ( Courell v. Kurzner , 118 A.D.2d 677, 678, 500 N.Y.S.2d 29 ). Since the plaintiff failed to submit an affidavit by a medical expert, she failed to demonstrate a potentially meritorious cause of action sounding in medical malpractice (see Telian v. Freund , 129 A.D.3d 828, 9 N.Y.S.3d 886 ; Culley v. Morrison , 247 A.D.2d 356, 667 N.Y.S.2d 940 ; Redding v. Saunders , 213 A.D.2d 1015, 625 N.Y.S.2d 115 ; Sabatino v. Albany Med. Ctr. Hosp. , 187 A.D.2d 777, 778, 589 N.Y.S.2d 654 ; Brice v. Westchester Community Health Plan , 143 A.D.2d 170, 171, 531 N.Y.S.2d 621 ).
Accordingly, the Supreme Court should have granted the moving defendants' motion pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them, and should not have extended the plaintiff's time to serve the complaint upon the moving defendants or compelled the moving defendants to accept the complaint.
SCHEINKMAN, P.J., MALTESE, CONNOLLY and BRATHWAITE NELSON, JJ., concur.