Tewari v. Tsoutsouras

• Decision Date: 24 October 1989
• Parties: , 549 N.E.2d 1143 Phyllis TEWARI, Individually and as Administratrix of the Estate of Jennifer Tewari, Deceased, Appellant, v. Steven TSOUTSOURAS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 572

550 N.Y.S.2d 572

75 N.Y.2d 1, 549 N.E.2d 1143

Phyllis TEWARI, Individually and as Administratrix of the Estate of Jennifer Tewari, Deceased, Appellant, v. Steven TSOUTSOURAS, Respondent.

Court of Appeals of New York.

Oct. 24, 1989.

Brian J. Shoot, Charles J. Nolet, Jr., and Leslie Schneider, New York City, for appellant.

Joseph D. Furlong, Stephen W. O'Leary, Sr. and Stephen W. O'Leary, Jr., Jamaica, for respondent.

Cory C. Kirchert, Albany, for Albany Medical Center Hosp. and others, amici curiae.

OPINION OF THE COURT

ALEXANDER, Judge.

In 1985, as part of a comprehensive reform of medical malpractice, the Legislature enacted CPLR 3406(a) which requires plaintiffs to file a "notice of dental, medical or podiatric malpractice action" ¹ within 60 days of joinder of issue. As a sanction for her failure to timely file this notice, the Appellate Division dismissed the plaintiff's complaint. We now reverse because a review of the relevant statutes and rules reveals no legislative authority for the imposition of the severe sanction of dismissal in this circumstance. We further conclude that the Appellate Division abused its discretion in determining that plaintiff's motion to extend the time to file the notice must be denied because she failed to demonstrate both the meritorious nature of her claims and a "reasonable excuse" for the delay.

I

On March 4, 1986, plaintiff commenced this medical malpractice action against the defendant, a licensed physician, alleging that defendant was negligent in the care and treatment of plaintiff's infant daughter and ultimately caused the child's death. On June 6, 1986, defendant served his answer, along with demands for a bill of particulars and for disclosure. In the disclosure demands defendant sought, inter alia, the production of X rays, authorizations to obtain the medical records of "all treating doctors", specifically those of Dr. Robinson and Dr. Rutkowski, authorizations to obtain "all hospital records and charts" of four different hospitals, all writings sent from the defendant to the plaintiff, the names and addresses of all nonparty treating physicians, identification of nonexpert witnesses, and, pursuant to CPLR 3101(d)(1), identification of expert witnesses, their qualifications, the subject matter of their testimony and the bases of their opinions.

Over the next four-month period, defendant sent plaintiff's counsel four letters demanding compliance with the discovery demands, specifically requesting plaintiff's authorizations for the admission records at the four hospitals and the records of Dr. Robinson and Dr. Rutkowski. None of the letters demanded that plaintiff file a notice of medical malpractice action as required by CPLR 3406(a). Plaintiff's counsel did not answer the letters and did not provide the demanded authorizations.

On March 16, 1987, six months after the date of his attorney's last letter demanding discovery, defendant moved to dismiss the complaint asserting that plaintiff had failed to timely file a notice of medical malpractice action and no motion for an extension had been made. Plaintiff opposed the motion and cross-moved for leave to file a late notice, asserting that her failure to timely file the notice was not deliberate and that she had simply been "awaiting production of voluminous medical records to properly answer defendants [sic ] demands for a Bill of Particulars, and serve defendant with appropriate authorizations". Supreme Court denied defendant's motion, granted plaintiff's cross motion based upon "the circumstances herein and in the interest of justice", and scheduled a precalendar conference (CPLR 3406[b]. The Appellate Division reversed and dismissed the complaint. Analogizing noncompliance with the notice requirement to a pleading default, that court concluded that dismissal was warranted because plaintiff had failed to proffer a reasonable excuse for her eight-month delay in seeking an extension and had not demonstrated the merit of her claims (Tewari v. Tsoutsouras, 140 A.D.2d 104, 109, 532 N.Y.S.2d 288). We granted leave and now reverse and reinstate the order of Supreme Court.

II

Chapter 294 of the Laws of 1985 (hereinafter the Medical Malpractice Reform Act) amended and added to various provisions of the Public Health Law, the CPLR, the Education Law, the Insurance Law and the Judiciary Law as part of a comprehensive plan intended "to ensure the continued availability and affordability of quality health services" in this State by lowering malpractice insurance premiums and thereby lowering health care costs (L.1985, ch. 294, § 1). More specifically, the Medical Malpractice Reform Act was intended to reduce the cost of malpractice insurance premiums while assuring adequate and fair compensation to injured persons, to expedite the resolution of malpractice claims and thereby reduce the cost of malpractice litigation, and to reduce incidents of medical malpractice (L.1985, ch. 294, Mem. of State Executive Dept., 1985 McKinney's Session Laws of N.Y., at 3022-3027). To expedite malpractice litigation, the Legislature provided for expanded discovery as to expert witnesses (CPLR 3101[d][1], the assessment of costs and attorneys' fees against a party or attorney advancing frivolous claims (CPLR 8303-a), and a mandatory precalendar conference, presided over by the Judge who would later try the case, in which the parties would explore settlement possibilities, simplify and limit issues and establish expedited discovery and trial schedules (CPLR 3406[b]. This precalendar conference is triggered by the plaintiff's filing of a "notice of dental, medical or podiatric malpractice action" pursuant to CPLR 3406(a) (see, Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3406 [1989 Supp.Pamph.], at 79-80).

Defendant seeks dismissal of plaintiff's complaint as a sanction for plaintiff's failure to timely file this notice rather than for any of the grounds for dismissal articulated in CPLR 3211. As with any other sanction, however, the courts of this State are empowered to grant the sanction of dismissal only when it has been authorized either by the Legislature or by court rules consistent with existing legislation (Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5-6, 511 N.Y.S.2d 216, 503 N.E.2d 681). Sanctions may not be imposed by ad hoc judicial decision-making (id., at 6, 511 N.Y.S.2d 216, 503 N.E.2d 681). Upon review of the relevant statutes and rules, we can discern no authority for imposition of the sanction of dismissal for a plaintiff's noncompliance with the notice requirement of CPLR 3406(a). Moreover, to allow the imposition of the sanction of dismissal here may very well create the problems the Legislature sought to remedy and thus would contravene the purpose of the Medical Malpractice Reform Act.

Neither the plain language of CPLR 3406(a) nor the structure of the newly enacted procedural scheme supports the conclusion that the Legislature intended dismissal to be a sanction for failure to timely file the notice. The statute provides: "(a) Mandatory filing. Not more than sixty days after issue is joined, the plaintiff in an action to recover damages for dental, medical or podiatric malpractice shall file with the clerk of the court in which the action is commenced a notice of dental, medical or podiatric malpractice action, on a form to be specified by the chief administrator of the courts. Together with such notice, the plaintiff shall file: (i) proof of service of such notice upon all other parties to the action; (ii) proof, that, if demanded, authorizations to obtain medical, dental or podiatric and hospital records have been served upon the defendants in the action; and (iii) such other papers as may be required to be filed by rule of the chief administrator of the courts. The time for filing a notice of dental, medical or podiatric malpractice action may be extended by the court only upon a motion made pursuant to section two thousand four of this chapter" (CPLR 3406[a]. CPLR 2004 provides that a court may grant an extension of time "upon such terms as may be just and upon good cause shown". By contrast, CPLR 3406(b), which directs the Chief Administrator of the Courts to promulgate special calendar control rules providing for the precalendar conference and expedited discovery and trial schedules, expressly authorizes "dismissal of an action" as a sanction for "failure of a party or a party's attorney to comply with these special calendar control rules or any order of a court made thereunder" (emphasis added). ² Thus the statute contemplates dismissal only as a sanction for noncompliance with the special calendar control rules promulgated under subdivision (b).

Consistent with the statute, the rules promulgated by the Chief Administrator do not authorize dismissal as a sanction for noncompliance with the notice requirement of CPLR 3406(a). Section 202.56 of the Uniform Rules for Trial Courts (22 NYCRR 202.56) provides in subdivision (a)(1) that a plaintiff must file a notice of medical malpractice action and in subdivision (b)(1) that upon the filing of such notice, the Judge is to schedule the precalendar conference. Subdivision (a)(3) provides that the notice of dental, medical or podiatric malpractice action "shall be filed after the expiration of 60 days only by leave of the court on motion and for good cause shown. The court shall impose such conditions as may be just, including the assessment of costs." Thus while the rule tracks the requirement of CPLR 3406(a) and 2004 that an extension be granted only upon "good cause shown", the rule authorizes only the imposition of "conditions" upon the granting of the extension. Outright dismissal upon a denial of the motion to extend cannot be viewed as such a "condition" because it immediately terminates the action and thus is not conditional.

Furthermore, like the statute, the rule authorizes ...