Calendar Date: January 11, 2017
J. Carroll, Kingston, for appellants.
Feldman, Kleidman, Coffey, Sappe & Regenbaum, LLP,
Fishkill (Wayne M. Rubin of counsel), for respondents.
Before: McCarthy, J.P., Garry, Lynch, Rose, and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Cahill, J.), entered
September 16, 2015 in Ulster County, which, among other
things, granted defendants' motion to dismiss the
2010, plaintiff Benedict Calcagno was injured in a motor
vehicle accident. Defendant David DiMarco thereafter
conducted surgery to address a fracture in Calcagno's
right ankle and physical therapy was prescribed. In April
2013, plaintiffs commenced this medical malpractice action
alleging that defendants were negligent in failing to address
certain injuries to Calcagno's ankle in the course of the
surgery and in failing to order an MRI at an earlier time.
August 2013, plaintiffs' counsel filed a complaint
accompanied by a document indicating that the required
certificate of merit following consultation with a physician
had not been obtained, and that it would be obtained and
filed within 90 days after service of the complaint, in
accord with CPLR 3012-a. In March 2015, as the certificate of
merit remained outstanding despite their requests, defendants
moved for dismissal of the action based upon plaintiffs'
failure to comply. Plaintiffs filed a certificate of merit in
April 2015 and cross-moved seeking leave for late service.
Without addressing the issue of timeliness, Supreme Court
granted defendants' motion to dismiss the action and
denied plaintiffs' cross motion, finding that
plaintiffs' certificate of merit was inadequate.
Plaintiffs appeal, and we affirm.
certificate of merit "merely ensures that counsel has
satisfied himself or herself that there is a reasonable basis
for the commencement of an action" (Horn v
Boyle, 260 A.D.2d 76, 77  [internal quotation
marks, brackets and citations omitted], lv denied 94
N.Y.2d 762 ). The statute requires counsel to submit a
certificate of merit declaring that he or she has consulted
with at least one licensed physician who is knowledgeable
regarding the relevant issues in the action, has reviewed the
facts of the case, and has thus concluded that such a
reasonable basis exists (see CPLR 3012-a).
agree with Supreme Court that the certificate proffered by
plaintiffs is inadequate. The allegations of malpractice
arise from defendants' diagnosis and surgical treatment,
and the certificate of merit is based upon an affidavit of
Calcagno's physical therapist, who opined, "as a
physical therapist, " that defendants' actions were
"departures from good and accepted medical
practice." However, by definition, a physical therapist
cannot diagnose and is incompetent to attest to the standard
of care applicable to physicians and surgeons (see Howard
v Espinosa, 70 A.D.3d 1091, 1094 ; see also
Glasgow v Chou, 33 A.D.3d 959, 962 ; Tornatore
v Haggerty, 307 A.D.2d 522, 522-523 ). Moreover,
we find no merit in plaintiffs' contention that the
certificate of merit should be deemed adequate, as it was
also based on certain medical reports, Calcagno's
testimony, and the pleadings. Review of these documents,
standing alone, cannot suffice. Expert analysis is required
to establish whether there was any departure from established
standards of care, and whether any such departure was the
proximate cause of injury to Calcagno (see Mosberg v
Elahi, 80 N.Y.2d 941, 942 ; Peluso v C.R.
Bard, Inc., 124 A.D.3d 1027, 1028 ). The statute
at issue thus mandates that the requisite expert consultation
occur at the earliest opportunity.
further reject plaintiffs' contention that the case may
be proven by application of the doctrine of res ipsa
loquitur, such that CPLR 3012-a need not apply. This
doctrine, which permits a factfinder to infer negligence
without an expert, is available only in "a narrow
category of factually simple medical malpractice cases
requir[ing] no expert to enable the jury reasonably to
conclude that the accident would not happen without
negligence" (Kambat v St. Francis Hosp., 89
N.Y.2d 489, 496 ; accord States v Lourdes
Hosp., 100 N.Y.2d 208, 210 ; see Monzon v
Chiaramonte, 140 A.D.3d 1126, 1128-1129 ). Here,
medical review is clearly necessary to establish whether
there was any departure from good and accepted medical
practice in the performance of the surgical procedure and
whether specific testing was properly warranted or indicated.
Contrary to plaintiffs' contention, these are not matters
within the knowledge of the average juror or the realm of
common sense (see Leone v United Health Servs., 282
A.D.2d 860, 860-861 ).
plaintiffs concede that the certificate of merit was filed
roughly 17 months late. The mere failure to timely file the
certificate does not support dismissal of the action, nor did
Supreme Court render its order upon this ground. However,
having failed to provide a reasonable excuse for the delay
and to reveal a reasonable basis for the action, plaintiffs
were not entitled to an extension of time (see CPLR
2004; Horn v Boyle, 260 A.D.2d at 79; see
generally Sisario v Amsterdam Mem. Hosp., 146 A.D.2d
837, 838 ; compare Dorgan v Dunda, 165 A.D.2d
949, 949 ).
McCarthy, J.P., Lynch, Rose and ...