Opinion
July 2, 1990
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the judgments are reversed, on the law, without costs or disbursements, the orders entered March 9, 1989, and April 4, 1989, respectively, are vacated, the defendants' cross motions to dismiss the complaint for failure to timely serve a notice of medical malpractice action is denied, the plaintiffs' motion is granted, the notice of medical malpractice action is deemed served and filed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.
We note that, although the Supreme Court purportedly denied renewal and reargument in the order entered April 4, 1989, the court did, in fact, reconsider the plaintiffs' original motion on the merits. In effect, the court in the order entered April 4, 1989, granted reargument, but adhered to the original determination made in the order entered March 9, 1989. Thus, we deem the notice of appeal from the order entered April 4, 1989, as a notice of appeal from both judgments, since both judgments were, in effect, entered on that order. Since the notice of appeal from the order entered April 4, 1989, is dated April 28, 1989, the appeals were timely perfected on July 28, 1989.
In Tewari v. Tsoutsouras ( 75 N.Y.2d 1) the Court of Appeals ruled that the dismissal of an action was not an authorized sanction for failure to timely file a notice of medical malpractice action under CPLR 3406 (a). Accordingly, the plaintiff should have been granted leave to file a late notice. However, the matter should be remitted to the Supreme Court, Suffolk County, to determine the appropriate amount of sanctions, if any, to be imposed upon the plaintiffs (see, Tewari v Tsoutsouras, supra; Braun v. Manes, 162 A.D.2d 428; Krulik v Meyerowitz, 160 A.D.2d 770; Fittipaldo v. Gal, 159 A.D.2d 481). Eiber, J.P., Sullivan, Balletta and Miller, JJ., concur.