Defendant Daniel Turk Williams, M.D. has moved pursuant to CPLR §2221(d) to

reargue Justice Sheila Abdus-Salaam's February 19, 2009 decision, which denied

defendant's motion to dismiss based on plaintiff's failure to file a Certificate of Merit

pursuant to CPLR §3012-a. Plaintiff opposes defendant's motion, arguing that the court

properly held her to be exempt from the filing requirement pursuant to subdivision (f) of

CPLR §3012-a because she was representing herself when the motion was made. Because Justice Abdus-Salaam was elevated to the Appellate Division, this case was reassigned to this Court.

Background

On May 31, 2002, plaintiff commenced this action with the assistance of counsel, claiming that the defendant committed medical malpractice and caused her injury. The alleged malpractice took place between September of 1992 and June of 1994 wherein defendant rendered psychiatric care to the plaintiff's father, as well as to the family. The father at the time was suffering from a manic-depressive condition. During this time period, defendant was also providing family therapy, which involved allegations that plaintiff Ms. Djeddah, then a child entering adolescence, was suffering physical, sexual and emotional abuse from her father. Plaintiff was between the ages of 10 and 12 when the alleged malpractice took place.

On July 26, 2002, defendant's counsel notified plaintiff by letter that all cases involving insureds of Legion Insurance Company had been stayed due to the insurance company's bankruptcy proceedings. The stay was extended numerous times until October 17, 2005, at which time the stay expired and the case could proceed. From the commencement of the action through January of 2006, plaintiff was represented by counsel, Louis Venezia. On January 4, 2006, Mr. Venezia was granted leave to withdraw as plaintiff's counsel and plaintiff began representing herself.

During the period from June 2007 through the end of 2008, various discovery

conferences were attended by plaintiff and defense counsel. Then, for the first time, on

December 23, 2008, defendant made a motion to dismiss pursuant to CPLR §3012-a. The court denied defendant's motion to dismiss on February 19, 2009, and Justice Abdus-Salaam held that "Plaintiff is pro se and is not required to file a certificate of merit (CPLR 3012-a (f)". Defendant now moves to reargue, claiming that the court misapplied the law, which required the filing of the Certificate of Merit with the complaint, but no later than 90 days after the production of defendant's medical records.

Discussion

[*2]CPLR §3012-a, subd. (a)(1) states that "In any action for medical malpractice, the complaint shall be accompanied by a certificate, executed by the attorney for the plaintiff, declaring that: the attorney has consulted with at least one physician ... 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". Subdivision (2) allows an attorney who is unable to prepare the Certificate of Merit in a timely fashion due to a lack of records to have an additional 90 days to do so. On May 31, 2002, at the same time that plaintiff's counsel filed the Summons With Notice and the Verified Complaint, plaintiff's counsel indicated he could not file a Certificate of Merit in a timely fashion. Although, under CPLR §3012-a, subd. (2) he was allowed 90 days to file the Certificate of Merit, he never did. Plaintiff's counsel was relieved on January 4, 2006 without filing the Certificate of Merit. It appears that defendant never made a demand that such a Certificate of Merit be filed, nor even raised the issue, until nearly seven years later when he made the instant motion to dismiss ^[FN1].

CPLR §3012-a, subd. (f), provides that "The provisions of this section shall not be made applicable to a plaintiff who is not represented by an attorney." At the time this motion was brought, plaintiff had been pro se for nearly three years. Justice Abdus-Salaam relied on the express language in subdivision (f) in finding that plaintiff had no duty to file the Certificate.

This Court rejects defendant's assertion that Justice Abdus-Salaam erred in her decision. CPLR §3012-a is clear in its language and its intent is made clear in its legislative history.The concern was that there was a possibility that an abundance of lawsuits without merit could be brought against doctors that would "threaten the public health by discouraging physicians and dentists from initiating or continuing their practice in New York". L 1986, ch 266 § 1.

In her opinion denying defendant's motion to dismiss, Justice Abdus-Salaamcites Harmon v. Huntington Hospital, 163 Misc 2d. 150 (Sup.Ct., N.Y.Co. 1994) as support for the ruling that plaintiff's pro se status exempts her from the requirement to file a Certificate of Merit. In Harmon, the plaintiff was representing himself, like Ms. Djeddah is representing herself here. Justice Stanley Sklar noted in Harmon that the Legislature found the intent of CPLR §3012-a was to "deter the commencement of frivolous cases" brought by attorneys on behalf of their clients. 163 Misc 2d. at 151 citing L 1986, ch 266 § 1. He also noted that the Legislature, while not explicitly discussing its reasoning for excluding pro se plaintiffs from the requirement to file a Certificate of Merit, did not appear concerned with pro se plaintiffs bringing frivolous lawsuits. Rather, the statute "was aimed at reducing frivolous suits commenced by attorneys on behalf of their clients." 163 Misc 2d. at 151.

Defendant suggests that Justice Abdus-Salaam's reliance on Harmon is misguided. However, defendant's attempt at distinguishing Harmon from the instant case is non-persuasive. He points to the fact that in Harmon, the plaintiff was pro se when the action was commenced. While this appears to be the case, the defendant did not file a motion to compel plaintiff to file the Certificate of Merit when plaintiff had counsel, and now that the matter is being raised, plaintiff is in fact pro se. During the time plaintiff had counsel who was required under the statute to file the Certificate of Merit, defendant chose not to make the motion. As a result, plaintiff is entitled to the benefit of the filing exemption in subdivision (f) even though she had counsel when the action was commenced. [*3]

Defendant cites the readily distinguishable case of Horn v. Boyle, 260 AD2d 76 (3rd Dep't 1999) as support for the motion to dismiss. Horn was an action wherein the plaintiff sued the defendant, an ophthalmologist, for alleged medical malpractice arising from the defendant's treatment of plaintiff's eye. The plaintiff in Boyle had counsel, unlike plaintiff in the present case. Plaintiff in Boyle did not file a Certificate of Merit, but instead executed an affirmation that claimed the complaint was being served without one to avoid the expiration of the Statute of Limitations on the action. 260 AD2d at 77. A Certificate of Merit was not filed in the following 90 days, as required by statute, and defendant died two years later, never having been deposed. Id. In addition, during the nearly three-year period between the filing and dismissal of the action, defendant made repeated requests for plaintiff to file the Certificate of Merit.

While the motion to dismiss was granted in Horn, the fact pattern differs completely from the case before this Court. In Horn, the defendant repeatedly sought a Certificate of Merit from plaintiff's counsel. Here, plaintiff is pro se and defendant never asked for her to file the Certificate of Merit, but instead moves directly for dismissal. In Horn, the action was dismissed when the plaintiff failed to demonstrate good cause for an extension of time to file a Certificate of Merit almost three years after it should have been filed, and also because allowing an extension to file would result in prejudice to the defendant, who died never having been deposed. 260 AD2d at 78. In addition, the medical opinion that was finally obtained was deemed insufficient to demonstrate a meritorious claim. Id. It appears in Horn that the dismissal was ultimately granted because the action had no merit. Here, in plaintiff's well-argued opposition papers she points to many records in the defendant's file that suggest this case does have merit.

The second case cited by defendant, Pastorello v. City of New York, 2001 WL 1542808 (S.D.NY 2001), is also readily distinguishable. In Pastorello, the plaintiff was pro se when the filing commenced, and later obtained counsel. The defendant sought to dismiss on the ground that plaintiff had failed to file a Certificate of Merit, and the court denied the motion. The court held that it would not apply the filing requirement retroactively to dismiss the claim for lack of a Certificate of Merit because the plaintiff was initially pro se. Id. at 18.

Pastorello does not support the defendant's argument because in Pastorello, the plaintiff had been pro se, and so CPLR §3012-a, subd. (f) applied. Despite the fact that plaintiff later retained counsel, the court applied the CPLR §3012-a, subd. (f) filing exception. Here, CPLR §3012-a, subd. (f) clearly states that a pro se plaintiff does not need to file a Certificate of Merit, and this Court finds that plaintiff, as a pro se, is entitled to the exemption despite her having counsel when the action commenced. As a result, Pastorello is unpersuasive and readily distinguishable.

Finally, it should be added that even if this Court found CPLR §3012-a, subd. (f)

inapplicable, and that the plaintiff was required to file the Certificate of Merit, this finding

would not lead to a dismissal of the plaintiff's action. The Court of Appeals has held in

Tewari v. Tsoutsouras that "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". Kolb v. Strogh, 158 AD2d 15, 20 (2nd Dep't 1990),

citing Tewari v. Tsoutsouras, 75 NY2d 1, 7 (1989). In the present case, the relevant

statute, CPLR §3012-a, does not include a sanction or remedy for plaintiffs who fail to file

the requisite Certificate of Merit. If this Court were to find that the plaintiff failed to

comply, the remedy would be to give her an opportunity to file at this point, and not to

simply dismiss the action. Dismissal of the case for failure to file a Certificate of Merit is [*4]

not a sanction this Court will consider ^[FN2].

Conclusion

Justice Abdus-Salaam correctly held that a pro se plaintiff is not held to the same

requirements as a plaintiff with legal representation. CPLR §3012-a, subd. (f) is crystal-

clear in its language. The defendant does not cite any case law that is directly on point,

and public policy does not support defendant's motion. Finally, the intention of the

Legislature when enacting CPLR §3012-a was to avoid frivolous actions by counsel, which

is not an issue here.

Accordingly, it is hereby

ORDERED that defendant's Motion to Reargue is denied and plaintiff's action shall proceed. Plaintiff and defense counsel shall appear in Room 222 for a discovery conference on July 29, 2009 at 10:30 a.m.

This constitutes the decision and order of this Court.

Dated: July 10, 2009

_______________________________

J.S.C.

Plaintiff - Pro Se

346 Heathcote Road

Scarsdale, NY 10483

914-725-7116

Attorney for Defendant

Stuart Bernstein, Esq.

Callan, Koster, Brady & Brennan, LLP

One Whitehall Street, 10th fl.

New York, NY 10004

212-248-8800