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Supreme Court12/9/1999
Calendar Date: October 15, 1999 Appeal from an order of the Supreme Court (Ferradino, J.), entered June 17, 1998 in Saratoga County, which, inter alia, granted defendant's motion to dismiss the complaint for failure to file a certificate of merit.
OPINION AND ORDER
In February 1995, plaintiff commenced this medical malpractice action against Edward Boyle, an ophthalmologist, arising out of the latter's treatment of plaintiff between January 1992 and September 1992 for glaucoma in the left eye. In lieu of filing a certificate of merit with the complaint (see, CPLR 3012- a ), plaintiff's counsel executed an affirmation dated February 21, 1995 claiming that the summons and complaint were being served without the certificate of merit to prevent the expiration of the Statute of Limitations (see, CPLR 3012-a ). A certificate of merit was therefore required to be filed within 90 days thereafter. Boyle died in July 1997 never having been deposed.
In April 1998, nearly three years after the 90-day time period elapsed, defendant moved to dismiss the complaint based on plaintiff's failure to serve a certificate of merit. Notably, this motion was made only after defendant's repeated requests for plaintiff to prosecute the matter (which included a request that plaintiff move for permission to file a late certificate of merit) or to discontinue it went unanswered. Shortly thereafter, plaintiff cross-moved to file a late certificate of merit. In support of this motion, he submitted an April 10, 1998 affirmation from Gregory Pinto, an ophthalmologist, who purported to establish that plaintiff had a meritorious cause of action. Without issuing a written opinion, Supreme Court granted defendant's motion and denied plaintiff's cross motion, prompting this appeal.
We begin our analysis by noting that a certificate of merit does not itself demonstrate the meritoriousness of a medical malpractice claim, but "merely ensures that counsel has satisfied himself [or herself] that 'there is a reasonable basis for the commencement of action' " (George v. Sastic, 166 AD2d 838, 839, quoting CPLR 3012-a ; see, Sober v. Kalina, 208 AD2d 1140, 1141). Here, in opposition to defendant's motion to dismiss and in support of his cross motion to file a late certificate of merit, plaintiff's counsel averred that Pinto's affirmation demonstrated the requisite reasonable basis for commencement of the action. Pinto's affirmation, however, did not allege to a reasonable degree of medical certainty that Boyle's actions "departed from accepted medical standards and that such departure was a proximate cause of the injuries alleged in plaintiff['s] complaint" (Dorgan v. Dunda, 165 AD2d 949, 949; compare, Daponte v. Weber, 134 AD2d 319, lv denied 71 NY2d 801). Rather, the letter merely stated that Boyle released plaintiff from care prematurely and that such premature release was contrary to standard practice in ophthalmology.
Turning our attention first to plaintiff's cross motion, we conclude that Supreme Court did not abuse its discretion in denying it. As noted by the Court of Appeals in Tewari v. Tsoutsouras (75 NY2d 1, 11-12, quoting CPLR 2004), "CPLR 2004 vests the trial court with discretion to extend the time to perform any act * * * 'upon such terms as may be just and upon good cause shown' ". Given the significant time period that elapsed between the February 1995 commencement of the action and the May 1998 cross motion indicating that plaintiff's counsel finally consulted with Pinto and obtained the April 10, 1998 letter, together with Boyle's death without having been deposed and the resultant prejudice to defendant, the lack of a reasonable excuse for the d
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