There are additional hurdles for legal malpractice cases not found in other spheres of the law. Rodriguez v Dean 2018 NY Slip Op 30642(U) April 10, 2018 Supreme Court, New York County Docket Number: 805280/16 Judge: Sherry Klein Heitler presents a new wrinkle we have not seen before. There are more than a few legal malpractice cases arising from negligently handled medical malpractice cases. There is a requirement in medical malpractice complaints that Plaintiff file a Certificate of Merit pursuant to CPLR 3012-a(1). There is an extensive body of law concerning what happens if the Certificate is not timely filed. It can (generally) be filed nunc-pro-tunc. Here, Supreme Court required the legal malpractice attorney to file a Certificate, and then dismissed for failure to file it.
“This is a legal malpractice action alleging that defendants failed to timely commence a medical malpractice action on plaintiffs’ behalf. The facts of this case are set forth in detail in the court’s November 27, 2017order. 1 Briefly, plaintiff Rosalia Rodriguez allegedly underwent corrective surgery at NYU Hospital in New York on February 12, 2012 which allegedly resulted in injuries to her leg. Ms. Rodriguez alleges that she then signed a retainer agreement with the law firm of Dell & Dean, PLLC to prosecute a medical malpractice action on her behalf. This alleged retainer has not been produced to the court. ”
“Moreover, plaintiffs do not submit any evidence to counter defendants’ assertion that there
is no medical basis for Ms. Rodriguez’ underlying medical malpractice claim. To be sure,.the
certificate of merit provided on the prior motion indicates that plaintiffs’ counsel consulted with a
physician who was not identified. For this reason it was the court’s belief that plaintiffs were in
possession of at least some medical information to support a cognizable medical malpractice claim.”
“CPLR 3012-a was “designed to warn lawyers away from bringing [medical malpractice]
actions at all unless they have consulted appropriate experts in the field to ascertain that the claim
has at least arguable merit.” Connors, Practice Commentaries, McKinneys Cons Laws of NY, Book
7B, C3012-a:l, at 141. Given the facts and circumstances of this case, and despite affording
plaintiffs several opportunities to do so over the course of several years, there is no evidence to
justify the continuation of this action. At this point, defendants are being prejudiced, and it would
be unjust to allow this case to proceed any further. See Horn v Boyle, 260 AD2d 76 (3d Dept
1999); see also Grad v Hajliger, 68 AD3d 543, 544 (1st Dept 2009); Deleon v Sonin & Genis, 303
AD2d 291, 292 (1st Dept 2003); George v St. John’s Riverside Hosp., 162 AD2d 140, 140 (1st Dept
1990); Kolb v Strogh, 15 8 AD2d 15, 22 (2d Dept 1990). “