Typographical Error Excused As Excusable Law Office Failure

In medical malpractice cases in New York plaintiffs must file what is known as a certificate of merit which indicates that the attorney consulted with at least one medical source before he filed the complaint. In Rosell v. International Cosmetic Surgery, ___Misc. 3d ___, NYLJ Nov. 27, 2007(N.Y. Co. Nov. 1, 2007), the court held that the plaintiffs use of the word "dentist" as opposed to "doctor" in this certificate of merit was excusable law office failure. As the court stated:

  Noting that plaintiff's Certificate of Merit indicates that counsel consulted with a dentist instead of a physician, defendants urge this Court to treat the matter as a default. Citing to George v. St. John's Riverside Hospital, 162 A.D.2d 140 (1st Dep't 1990) and Defelice v. New York Eye and Ear Infirmary, 5 Misc.3d 1027(A) (Sup. Ct., NY Co. 2004), defendants further urge the Court to dismiss the action because plaintiff has failed to present a reasonable excuse for the default and an affidavit of merit from a medical expert. Emphasizing that she did serve a corrected Certificate of Merit shortly before defendants's motion was made, plaintiff asserts that the typographical error should not be viewed as a default. She adds that, in any event, she has established grounds to vacate any default by demonstrating that the error is excusable and the action meritorious

This Court agrees that the typographical error does not rise to the level of a default. Rather, it is a correctable irregularity which has, in fact, been corrected. See CPLR §1201. But even if the error were viewed as a default, this Court finds that the default should be vacated pursuant to the above-cited cases based on plaintiff's showing of excusable neglect and a meritorious cause of action.

The typographical error may properly be considered excusable law office failure. "[A] plaintiff should not be deprived of the important right to have his or her case decided on the merits because of law office failure, where . . . the complaint has merit and the other party cannot show prejudice." Kaufman v. Bauer, 36 A.D.3d 481, 483 (1st Dep't 2007), quoting Tenax v. New York Tel. Co., 280 A.D.2d 294, 296 (1st Dep't 2001); citing Andrenas v. Eschew Constr. Corp., 277 A.D.2d 28, 29 (1st Dep't 2000); Salzano v. Mastrantonio, 267 AD2d 5 (1st Dep't 1999). Defendants here do not claim any prejudice, as they knew from the allegations in the complaint that plaintiff was alleging that defendants had departed from accepted standards of medical care in their treatment of plaintiff, which included "liposuction of the hips, abdomen, inner and outer thighs and abdominoplasty". (Complaint at ¶13).

A word to the wise, proof read and be careful. Many times a litigant is not going to be as lucky as this plaintiff.

Mitchell H. Rubinstein