Cheiban v. Long Island College Hospital , 166 A.D.2d 494 ( 1990 )

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated June 1, 1989, which denied its motion to dismiss the action on the ground that the plaintiff failed to comply with CPLR 3406 (a) and 3012-a and granted the plaintiff’s cross motion for leave to cure his defaults.

Ordered that the order is affirmed, with costs.

The Court of Appeals has held that dismissal is not an authorized sanction for a plaintiff’s failure to file a timely notice of medical malpractice action pursuant to CPLR 3406 (a) (see, Tewari v Tsoutsouras, 75 NY2d 1). Therefore, the Supreme Court properly denied the defendant’s motion to dismiss the complaint on that ground. Furthermore, we have held that the sanction of dismissal is also not authorized for a violation of the plaintiff’s duty to serve a certificate of merit pursuant to CPLR 3012-a (see, Kolb v Strogh, 158 AD2d 15). Accordingly, the court properly permitted the plaintiff to file a late notice and certificate of merit. Thompson, J. P., Brown, Balletta, Miller and O’Brien, JJ., concur.