22 CRR-NY 202.56NY-CRR
22 CRR-NY 202.56
22 CRR-NY 202.56
202.56 Medical, dental and podiatric malpractice actions; special rules.
(a) Notice of medical, dental or podiatric malpractice action.
(1) Within 60 days after joinder of issue by all defendants named in the complaint in an action for medical, dental or podiatric malpractice, or after the time for a defaulting party to appear, answer or move with respect to a pleading has expired, the plaintiff shall obtain an index number and file a notice of such medical, dental or podiatric malpractice action with the appropriate clerk of the county of venue, together with:
(i) proof of service of the notice upon all other parties to the action;
(ii) proof that, if demanded, authorizations to obtain medical, dental and hospital records have been served upon the defendants in the action;
(iii) copies of the summons, notice of appearance and all pleadings, including the certificate of merit if required by CPLR 3012-a;
(iv) a copy of the bill of particulars, if one has been served;
(v) a copy of any arbitration demand, election of arbitration or concession of liability served pursuant to CPLR 3045; and
(vi) if requested and available, all information required by CPLR 3101(d)(1)(i).
The notice shall be served simultaneously upon all such parties. If the bill of particulars, papers served pursuant to CPLR 3045, and information required by CPLR 3101(d)(1)(i) are not available, but later become available, they shall be filed with the court simultaneously when served on other parties. The notice shall be in substantially the following form:
Notice of Medical, Dental or Podiatric Malpractice Action
Reserved for Clerk's use
Name of Assigned Judge
Please take notice that the above action for medical, dental or podiatric malpractice was commenced by service of summons on __, that issue was joined therein on __, and that the action has not been dismissed, settled or otherwise terminated.
1. State full name, address and age of each plaintiff.
2. State full name and address of each defendant.
3. State alleged medical specialty of each individual defendant, if known.
4. Indicate whether claim is for
5. State date and place claim arose.
6. State substance of claim.
7. (Following items must be checked)
(a) Proof is attached that authorizations
to obtain medical, dental, podiatric
and hospital records have been
served upon the defendants in the
demand has not been made for such
(b) Copies of the summons, notice of
appearance, all pleadings, certificate
of merit, if required, and the bill of
particulars if one has been served,
(c) A copy of any demand for arbitration,
election of arbitration or concession
of liability is attached
demand has not been made for
(d) All information required by CPLR
3101(d)(1)(i) is attached
a request for such information has
not been made
such information is not available.
8. State name, addresses and telephone numbers of counsel for all parties.
Attorney for Plaintiff
1. Attach additional 8 ½ × 11 rider sheets if necessary.
2. Attach proof of service of this notice upon all other parties to the action.
(2) The filing of the notice of medical, dental or podiatric malpractice action in an action to which a judge has not been assigned shall be accompanied by a request for judicial intervention, pursuant to section 202.6 of this Part, and shall cause the assignment of the action to a judge.
(3) Such notice shall be filed after the expiration of 60 days only by leave of the court on motion and for good cause shown. The court shall impose such conditions as may be just, including the assessment of costs.
(b) Medical, dental and podiatric malpractice preliminary conference.
(1) The judge, assigned to the medical, dental or podiatric malpractice action, as soon as practicable after the filing of the notice of medical, dental or podiatric malpractice action, shall order and conduct a preliminary conference and shall take whatever action is warranted to expedite the final disposition of the case, including but not limited to:
(i) directing any party to utilize or comply forthwith with any pretrial disclosure procedure authorized by the Civil Practice Law and Rules;
(ii) fixing the date and time for such procedures, provided that all such procedures must be completed within 12 months of the filing of the notice of medical, dental or podiatric malpractice action unless otherwise ordered by the court;
(iii) establishing a timetable for offers and depositions pursuant to CPLR 3101(d)(1)(ii);
(iv) directing the filing of a note of issue and a certificate of readiness when the action otherwise is ready for trial provided that the filing of the note of issue and certificate of readiness, to the extent feasible, be no later than 18 months after the notice of medical, dental or podiatric malpractice action is filed;
(v) fixing a date for trial;
(vi) signing any order required;
(vii) discussing and encouraging settlement, including use of the arbitration procedures set forth in CPLR 3045;
(viii) limiting issues and recording stipulations of counsel; and
(ix) scheduling and conducting any additional conferences as may be appropriate.
(2) A party failing to comply with a directive of the court authorized by the provisions of this subdivision shall be subject to appropriate sanctions, including costs, imposition of appropriate attorney's fees, dismissal of an action, claim, cross-claim, counterclaim or defense, or rendering a judgment by default. A certificate of readiness and a note of issue may not be filed until a preliminary conference has been held pursuant to this subdivision.
(3) Where parties are represented by counsel, only attorneys fully familiar with the action and authorized to make binding stipulations or commitments, or accompanied by a person empowered to act on behalf of the party represented, shall appear at the conference.
(c) Settlement conferences.
(1) The court shall hold a settlement conference in accordance with CPLR 3409 within 45 days after the filing of the note of issue and certificate of readiness or, if a party moves to vacate the note of issue and certificate of readiness and that motion is denied, within 45 days after denial of the motion.
(2) Where parties are represented by counsel, only attorneys fully familiar with the action and authorized to dispose of the case, or accompanied by a person empowered to act on behalf of the party represented, shall appear at the conference.
(3) Where appropriate, the court may order parties, representatives of parties, representatives of insurance carriers or other persons having an interest in any settlement to attend the settlement conference in person, by telephone, or by other electronic media.
RESEARCH REFERENCES AND PRACTICE AIDS:
76 NY Jur 2d, Malpractice §§ 246, 249, 251, 252, 278, 279, 281, 283, 284, 287, 288.
105 NY Jur 2d, Trial § 75.
22 CRR-NY 202.56
Current through March 31, 2018
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