CURCIO v. SAX (2005)

 In this action by plaintiff to recover damages sustained as a result of defendants' alleged medical malpractice, defendants appeal from an order denying their motion to dismiss the action pursuant to CPLR 3012(b) for plaintiff's failure timely to serve the complaint pursuant to defendants' demand therefor.   Supreme Court erred in denying the motion.   Plaintiff failed to show the meritorious nature of the action (see Kel Mgt. Corp. v. Rogers & Wells, 64 N.Y.2d 904, 905, 488 N.Y.S.2d 156, 477 N.E.2d 458;  Trendell v. Community Gen. Hosp., 278 A.D.2d 810, 718 N.Y.S.2d 680;  Ward v. Quick, 249 A.D.2d 943, 944, 672 N.Y.S.2d 581).   Although in most types of actions a verified complaint will fulfill the requirement of an affidavit of merit (see Ward, 249 A.D.2d at 944, 672 N.Y.S.2d 581;  Grant v. City of N. Tonawanda, 225 A.D.2d 1089, 639 N.Y.S.2d 193), the averments of a lay plaintiff cannot serve as the essential showing of the merit of a medical malpractice action where, as here, the averments include matters not within the ordinary experience and knowledge of laypersons (see Fiore v. Galang, 64 N.Y.2d 999, 1000-1001, 489 N.Y.S.2d 47, 478 N.E.2d 188;  Coakley v. Gabel, 158 A.D.2d 954, 955, 551 N.Y.S.2d 114, lv. dismissed in part and denied in part 76 N.Y.2d 931, 563 N.Y.S.2d 57, 564 N.E.2d 667, rearg. denied 76 N.Y.2d 1018, 565 N.Y.S.2d 767, 566 N.E.2d 1172).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the action is dismissed.

MEMORANDUM: