New York State Court of Claims

New York State Court of Claims

LAVERTY v. THE STATE OF NEW YORK, #2004-033-049, Claim No. 107842, Motion No. M-67523


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Taub and Marder, Esqs.By: Elliot H. Taub, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 24, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion by Francis Laverty (hereinafter "claimant") to amend his pleading pursuant to CPLR 3025(b) to include a certificate of merit in a medical malpractice action (CPLR 3012-a). Claimant also asks that the Court strike the defendant's first affirmative defense that the claimant has failed to file the certificate of merit.[1] The claim of Helen Laverty is derivative in nature. On June 28 and 29, 2002, claimant was at the State University Hospital at Stony Brook (hereinafter "defendant"). Claimant alleges that he was not monitored as he was supposed to be and that this failure to monitor him allowed claimant to wander in the hospital, fall and break his hip. Thereafter, on September 9, 2002, claimant's attorney served a notice of intention to file a claim upon the Attorney General's office. The attorney verified the notice of intention after consulting with a medical expert in this field (Claimant's attorney's affirmation page 2). Claimant served the claim on the Attorney General's office on May 28, 2003. However, claimant failed to serve a certificate of merit with the claim as required by CPLR 3012-a.

CPLR 3012-a states, in pertinent part:
(a) In any action for medical, dental or podiatric malpractice, 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 in medical malpractice actions, at least one dentist in dental malpractice actions or at least one podiatrist in podiatric malpractice actions who is licensed to practice in this state or any other 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...

Defendant argues that claimant's motion should be denied because he failed to attach a physician's affirmation in support of the certificate of merit (See Casiano v New York Hosp.-Cornell Med. Ctr., 169 AD2d 806).

In reply to defendant's opposition, claimant has submitted a physician's affirmation attesting to the merits of claimant's clam.

The sanction of dismissing a case for failure to file a certificate of merit has been abandoned (See Tewari v Tsoutsouras, 75 NY2d 1; see also Kolb v Strogh, 158 AD2d 15). Notably, the court in Kolb, states that because the legislature did not provide for a dismissal sanction in CPLR 3012-a, then that sanction is not available. Kolb states that a court may, upon a defendant's motion, order the plaintiff to file a certificate of merit. In the event the plaintiff fails to obey the court's order to file the certificate of merit, the court may then dismiss the case for the plaintiff's failure to obey the court's order.

In the present case, defendant has not asked for dismissal. Rather, the claimant seeks permission to amend the pleading to include the certificate of merit. CPLR 3025(b) says that a party may amend its pleading at any time with leave of the court and that leave shall be freely given. No prejudice inures to defendant by the claimant being allowed to file the certificate of merit at this time. The Court notes that claimant could withdraw the claim and refile with the appropriate papers in a still timely manner. Rather than take such unnecessary steps, the Court grants claimant permission to file the certificate of merit.

Based on the foregoing, the claimant's motion to amend his pleading and file a certificate of merit pursuant to CPLR 3012-a is granted. Claimant is directed to file the certificate of merit within thirty (30) days of the filing date of this decision and order.

March 24, 2004
Hauppauge, New York

Judge of the Court of Claims

The following papers have been read and considered on claimant's motion to amend his pleading pursuant to CPLR §3025(b): Notice of Motion dated October 3, 2003 and filed October 6, 2003; Affirmation in Support of Motion of Elliot H. Taub, Esq. with Exhibits A-D dated October 3, 2003 and filed October 6, 2003; Affirmation in Opposition of Ross N. Herman, AAG, dated October 17, 2003 and filed October 20, 2003; Reply Affirmation of Elliot H. Taub, Esq. with Exhibit A dated October 28, 2003 and filed November 3, 2003.