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ALTHOUGH THIS MEDICAL MALPRACTICE ACTION WAS IMPROPERLY BROUGHT AS AN ORDER TO SHOW CAUSE AND PETITION, IT SHOULD NOT HAVE BEEN DISMISSED; RATHER IT SHOULD HAVE BEEN CONVERTED BY DEEMING THE ORDER TO SHOW CAUSE A SUMMONS AND THE PETITION A COMPLAINT; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the action should not have been dismissed because it was in the form of a proceeding rather than an action. Supreme Court should have converted the proceeding into the proper form:

The petitioner commenced this purported proceeding by the filing of an order to show cause and a petition, inter alia, for injunctive relief and to recover damages for medical malpractice. In opposition to the order to show cause and the petition, the respondent submitted an affirmation of counsel, in which counsel argued, among other things, that the proceeding should be dismissed because it was not brought in the proper form. The Supreme Court conducted a hearing on the petition. Thereafter, the court issued a judgment, in effect, denying the petition and dismissing the proceeding. The petitioner appeals.

Although this matter was improperly commenced in the form of a proceeding instead of an action, dismissal is not required. “Pursuant to CPLR 103(c), a proceeding should not be dismissed ‘solely because it is not brought in the proper form,’ and the court has the power to convert a proceeding into the proper form” … . Accordingly, we convert this proceeding into an action, inter alia, for injunctive relief and to recover damages for medical malpractice, with the order to show cause deemed to be the summons and the petition deemed to be the complaint (see CPLR 103[c] …), and remit the matter to the Supreme Court, Nassau County, to afford the respondent an opportunity to serve and file an answer within 20 days of service upon it of this decision and order with notice of entry … . Matter of Robinson v NYU Langone Hosps., 2025 NY Slip Op 00870, Second Dept 2-13-25

Practice Point: A proceeding brought in the wrong form can be converted to the proper form by the court pursuant to CPLR 103 (c).

 

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