Correspondence from Claimant's Attorney, dated May 14, 2004 4
Sur-Affirmation in Opposition, Certificate of Merit 5,6 As set forth in the
affirmation of defendant's attorney (see Item 2, par. 5), defendant was served
with a note of issue and certificate of readiness by claimant's attorney on
March 1, 2004. This note of issue was filed with the Clerk of the Court of
Claims on February 26, 2004. It is defendant's contention that this claim is
not, in fact, ready for trial, and that claimant's attorney admitted as much in
a statement submitted with the note of issue. Defendant therefore has moved
herein for an order vacating the note of issue
Additionally, the Court recently received correspondence from claimant's
attorney (see Item 4), indicating that claimant is presently unavailable and
therefore is unable to proceed with the trial of this claim. Claimant's
attorney has requested that this claim be stricken from the Court's trial
Based upon the Court's review of the papers submitted herein, it is apparent
that this claim is not ready for trial, and the note of issue previously served
and filed herein should therefore be vacated.
Defendant also seeks dismissal of the claim based upon claimant's failure to
file and serve a certificate of merit as required by CPLR § 3012-a.
It has been held, however, that the initial failure to file such a certificate
does not equate to a default in pleading, and therefore a dismissal of the
proceeding should not immediately result from such a failure to serve the
certificate (Dye v Leve, 181 AD2d 89; Kolb v Strogh, 158 AD2d 15).
Furthermore, the Court is aware that such a certificate of merit has now been
filed with the Clerk of the Court of Claims as of May 13, 2004, thereby
rendering this aspect of defendant's motion moot.
Accordingly, based upon the foregoing, it is
ORDERED, that Motion No. M-68140 is hereby GRANTED, in part, and claimant's
previously served and filed note of issue and certificate of readiness is hereby
stricken; and it is further
ORDERED, that the aspect of defendant's motion seeking dismissal of the claim
based upon a failure of the claimant to serve and file a certificate of merit is
hereby DENIED as moot; and it is further
ORDERED, that a conference will be scheduled as soon as practicable by the
Court to review the status of this claim and to set time frames for the
completion of discovery and for the filing of a new note of issue and
certificate of readiness.