Amodeo v. Radler, 59 N.Y.2d 1001 (1983)

A complaint verified by the plaintiff based on personal knowledge and detailing the defendant’s acts of negligence can serve as a sufficient affidavit of merit to defeat a motion to dismiss for failure to prosecute.

Summary

In a medical malpractice and negligence action, the New York Court of Appeals considered whether the plaintiff’s verified complaint could serve as a sufficient affidavit of merit to defeat a motion to dismiss for failure to prosecute. The Court held that the verified complaint, detailing the specific acts of negligence by defendant Paratore, was indeed a sufficient affidavit of merit. The Court reversed the Appellate Division’s dismissal of the complaint against Paratore and remitted the case for the Appellate Division to consider the matter in the exercise of its discretion. However, the Court affirmed the dismissal against the medical malpractice defendants due to the plaintiff’s failure to file a proper affidavit of merits.

Facts

The plaintiff, Amodeo, brought a lawsuit against Vassar Brothers Hospital, Dr. Isidro Ferrando, and Louis Paratore, alleging medical malpractice and negligence. The specific facts underlying the negligence claim against Paratore are not extensively detailed in this decision, but the complaint detailed Paratore’s acts of negligence. The plaintiff verified the complaint based on personal knowledge.

Procedural History

The defendants moved to dismiss the case for failure to prosecute under CPLR 3216, arguing that the plaintiff failed to serve and file a note of issue. Special Term denied the motion. The Appellate Division reversed, dismissing the complaint against all defendants. The Appellate Division stated that it was an abuse of discretion to deny the motion to dismiss. The plaintiff appealed to the New York Court of Appeals.

Issue(s)

1. Whether the plaintiff’s failure to file a separate affidavit of merits requires dismissal of the complaint against the medical malpractice defendants.
2. Whether a complaint verified by the plaintiff on the basis of personal knowledge can constitute a sufficient affidavit of merit to defeat a motion to dismiss for failure to prosecute, specifically regarding the negligence claim against defendant Paratore.

Holding

1. Yes, because the plaintiff failed to file an affidavit of merits as required in medical malpractice cases, the dismissal against Vassar Brothers Hospital and Dr. Ferrando was affirmed.
2. Yes, because the verified complaint detailed Paratore’s specific acts of negligence and was based on the plaintiff’s personal knowledge, it served as a sufficient affidavit of merit.

Court’s Reasoning

Regarding the medical malpractice defendants, the Court of Appeals cited Amodeo v. Radler, 59 NY2d 1001 and Sortino v. Fisher, 20 AD2d 25, 31-32, emphasizing the requirement for an affidavit of merits in such cases. The absence of this affidavit justified the dismissal. Regarding defendant Paratore, the Court referenced CPLR 105, subd [s] and Bethlehem Steel Corp. v. Solow, 51 NY2d 870, 872, indicating that a verified complaint can substitute for a formal affidavit of merit if it contains sufficient detail and is based on personal knowledge. The Court determined that the Appellate Division erred in holding, as a matter of law, that Special Term abused its discretion. The court noted the inconsistency in the Appellate Division’s decision, stemming from a statement that the reversal was an exercise of discretion versus the order reciting that the decision was on the law. The Court resolved this inconsistency by stating that “it was an abuse of discretion” which is a ruling on the law (citing Barasch v Micucci, 49 NY2d 594, 598). The Court held that because the verified complaint detailed Paratore’s acts of negligence, it was sufficient. The case was remitted to the Appellate Division to consider the matter within its discretion.