Surleti v. Stigliano

OPINION OF THE COURT

Motion by defendant Winthrop University Hospital (Hospital) and the cross motion by defendants Twist, Greensher and Coryllos for orders "rejecting” plaintiff’s notice of medical malpractice action pursuant to CPLR 3406 are denied.

It is true that CPLR 3406 requires that a plaintiff in a dental or medical malpractice action file the requisite notice *457"[n]ot more than sixty days after issue is joined”; that rule also provides that the time for filing of the notice "may be extended by the court only upon a motion made” pursuant to CPLR 2004, i.e., "upon such terms as may be just and upon good cause shown, whether the application * * * is made before or after the expiration of the time fixed”. Although no date of filing is specified, plaintiff asserts without contradiction that she served the notice on July 16, 1986, just 69 days (see, CPLR 2103 [b] [2]) after defendant Hospital served its answer and 72 days (CPLR 2103 [b] [2]) after defendants Twist, Greensher and Coryllos served theirs. These defendants immediately, and apparently without appreciation of the applicable administrative rule, made these motions, thus engendering delay that recent legislative enactments were presumably designed to avoid. (See, L 1985, ch 294.)

Uniform Rules for the New York State Trial Courts (22 NYCRR) § 202.56 (a) provides that the notice of medical or dental malpractice shall be filed within "sixty days of joinder of issue by all defendants” (emphasis added). And inasmuch as it appears that defendant Stigliano, who does not appear on these motions, did not serve his answer, by mail, until May 16, 1986, there is no need for a motion pursuant to CPLR 2004, and there is no basis for the motions made by the other defendants.

Counsel for all parties are directed to report to my courtroom on Wednesday, January 28, 1987, at 3:00 p.m. for preliminary conference. If court is then in session, counsel shall report to the officer at the fourth floor information desk.