The Appellate Division unanimously affirmed the denial of defendants’ cross motion to dismiss the complaint for failure to timely file a certificate of merit pursuant to CPLR 3012-a, which provides that, in a medical malpractice action, "the complaint shall be accompanied by a certificate, executed by the attorney for the plaintiff, declaring that: (1) the attorney has reviewed the facts of the case and has consulted with at least one physician . . . who is licensed to practice in [any] state . . . and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action; or (2) the attorney was unable to obtain the consultation required . . . because a limitation of time . . . would bar the action and that the certificate . . . could not reasonably be obtained before such time expired. If a certificate is executed pursuant to this subdivision, the certificate required by this section shall be filed within ninety days after service of the complaint." The sanction of dismissal is not authorized by the statute. In the event of a plaintiffs' noncompliance, the appropriate course is to request a conditional order compelling compliance, which can result in dismissal of the action at the discretion of the court, pursuant to CPLR 3126[3].
Fortune v. New York City Health & Hosps. Corp., NY Slip Op 01122 (1st Dep't February 18, 2021)
