## Facts

- A mother, individually and as administratrix of her infant daughter’s estate, sued a physician for medical malpractice and wrongful death, alleging negligent treatment caused the child’s death.
- After joinder of issue, the physician served broad discovery demands, including authorizations for treating-physician and hospital records and expert disclosure.
- Over several months, defense counsel repeatedly demanded discovery compliance, focusing on authorizations for records.
- The plaintiff did not file the CPLR 3406(a) “notice of dental, medical or podiatric malpractice action” within 60 days after joinder of issue.
- The physician moved to dismiss based on the untimely CPLR 3406(a) notice.
- The plaintiff cross-moved for permission to file the notice late, asserting delay tied to obtaining records and arguing the delay was not intentional and caused no prejudice.
- Supreme Court denied dismissal and granted leave to file the notice nunc pro tunc.
- The Appellate Division reversed and dismissed the complaint, treating the failure as analogous to a pleading default and requiring both a reasonable excuse and a meritorious claim.
- The Court of Appeals granted leave to appeal.

## Issues

1. Whether dismissal is an authorized sanction for failure to timely file the CPLR 3406(a) notice in a medical malpractice action.
2. Whether, under CPLR 2004, an extension of time to file the CPLR 3406(a) notice requires the stringent “reasonable excuse and meritorious claim” showing applicable to pleading defaults, and whether the Appellate Division improperly displaced the trial court’s discretion.

## Decision

- The Court of Appeals reversed the Appellate Division and reinstated Supreme Court’s order.
- The Court held there is no legislative authority in CPLR 3406(a) to dismiss an action for failure to timely file the notice.
- The Court rejected characterizing the CPLR 3406(a) notice as a pleading or jurisdictional prerequisite; it is a case-management device to identify malpractice cases for calendar control.
- The Court held Supreme Court acted within its broad CPLR 2004 discretion in permitting late filing upon good cause and in the absence of demonstrated prejudice.
- The Court concluded the Appellate Division abused its discretion by importing a default-pleading standard and substituting its judgment for Supreme Court’s.

## Legal Principles

- Dismissal as a sanction generally requires express statutory or rule authorization; CPLR 3406(a) contains no express dismissal sanction for untimely notice.
- The CPLR 3406(a) notice is not a pleading, does not state a cause of action, and is not a condition precedent to maintaining the action or to subject-matter jurisdiction.
- CPLR 2004 grants trial courts broad discretion to extend statutory or rule-based deadlines “upon good cause shown” and on just terms.
- In considering late filing of a CPLR 3406(a) notice, courts may consider the reasons for delay and prejudice; rigid application of default-pleading requirements is improper.
- Severe sanctions that terminate actions should not be imposed for noncompliance with a case-management requirement absent clear authorization and a showing that lesser measures are inadequate.

## Conclusion

The Court of Appeals held that untimely filing of the CPLR 3406(a) malpractice notice does not authorize dismissal and that trial courts may extend the time under CPLR 2004 based on good cause and lack of prejudice; the complaint was reinstated and late filing permitted.


Tewari v. Tsoutsouras, 75 N.Y.2d 1, 550 N.Y.S.2d 572, 549 N.E.2d 1143 (N.Y. 1989)