Opinion
April 25, 1988
Appeal from the Supreme Court, Queens County (Santucci, J.).
Ordered that the appeal from the order dated March 17, 1987, is dismissed, as that order was superseded by the order dated June 9, 1987, made upon reargument; and it is further,
Ordered that the order dated June 9, 1987, is reversed insofar as appealed from, on the law, the order dated March 17, 1987, is vacated, and the defendant's motion to dismiss the complaint is granted; and it is further,
Ordered that the defendant is awarded one bill of costs.
The plaintiff commenced this medical malpractice action on or about May 6, 1986, by the service of a summons without a complaint. The defendant's attorney served a notice of appearance and demand for a complaint on June 16, 1986, and, following a warning letter to the plaintiff's attorney, the defendant moved on or about November 3, 1986, to dismiss the action pursuant to CPLR 3012 (b) based upon the plaintiff's attorney's failure to serve a complaint. Subsequent thereto, on November 26, 1986, the complaint was served and was rejected.
In opposition to the motion to dismiss, the plaintiff's attorney submitted his affirmation offering a number of excuses for his default, all of which constitute law office failure. Also submitted was an affidavit of merit from the plaintiff Geraldine Nunez in which she stated that the defendant failed to diagnose her mother's illness as cancer, and she believes and was informed that had the cancer been diagnosed and treated in a timely fashion her mother would have lived a longer time. The Supreme Court denied the defendant's motion to dismiss on condition that the plaintiff pay costs of $150.
CPLR 3012 (b) provides that if the complaint is not served within 20 days after service of a notice of appearance the court, upon motion, may dismiss the action. In Kel Mgt. Corp. v. Rogers Wells ( 64 N.Y.2d 904, 905), the Court of Appeals reiterated the rule that, in a motion such as this, an affidavit of merit is an indispensable requisite, as follows: "This court has previously held that a party opposing a CPLR 3012 (b) motion to dismiss based upon law office failure is obligated to submit an affidavit of merit containing evidentiary facts sufficient to establish a prima facie case. (Canter v. Mulnick, 60 N.Y.2d 689.) Here, plaintiffs served the complaint upon defendant more than three and one-half months past the statutorily required date, and when faced with a CPLR 3012 (b) motion to dismiss, failed to submit an affidavit of merit. Because of this deficiency, it was error, as a matter of law, not to grant the motion to dismiss without condition" (see also, McNamara v. Past Time Pub, 100 A.D.2d 618).
In this medical malpractice case, the plaintiff was required to provide an affidavit of merit by a medical expert (see, Fiore v Galang, 64 N.Y.2d 999, 1000-1001; Amsler v. Verrilli, 119 A.D.2d 786). The plaintiff's alleged cause of action is based on medical matters, namely, the failure to diagnose cancer, a subject not within the ordinary experience and knowledge of laypersons. Therefore, an affidavit of merit executed by her personally was insufficient (see, Fiore v. Galang, supra, at 1001).
Accordingly, the defendant's motion to dismiss the action should have been granted unconditionally. Thompson, J.P., Lawrence, Spatt and Harwood, JJ., concur.