Braun v. Manes

In an action, inter alia, to recover damages for personal injuries based on medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Di Noto, J.), dated November 30, 1988, which denied his motion for leave to amend the complaint and for leave to serve a late notice of medical malpractice action pursuant to CPLR 3406, and granted the cross motion of the defendant Massapequa General Hospital and that branch of the cross motion of the defendant Harvey Manes which was to dismiss the complaint for failure to timely serve a notice of medical malpractice action.

Ordered that the order is reversed, on the law, without costs or disbursements, the cross motion of the defendant Massapequa General Hospital and that branch of the cross motion of the defendant Harvey Manes which was to dismiss the complaint for failure to timely serve a notice of medical malpractice action are denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.

In Tewari v Tsoutsouras (75 NY2d 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 be granted leave to file a late notice. However, the matter should be remitted to the Supreme Court, Nassau County, for further proceedings with respect to the plaintiff’s motion, to determine the appropriate amount of sanctions to be imposed upon the plaintiff, if any, as well as for a determination of that branch of the plaintiffs motion which was for leave to serve an amended complaint and that branch of the cross motion of the defendant Manes which was to dismiss the plaintiffs breach of contract cause of action. Mangano, P. J., Lawrence, Rubin and Balletta, JJ., concur.