Carluzzo v Aly

[*1] Carluzzo v Aly 2005 NY Slip Op 51380(U) [9 Misc 3d 1102(A)] Decided on August 31, 2005 Supreme Court, Richmond County Minardo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 31, 2005
Supreme Court, Richmond County

ROSARIO CARLUZZO, Plaintiff,

against

MAHMOUD ALY, M.D.. and "XYZ MEDICAL LABORATORY" (the name being fictitious and presently intended being the laboratory which analyzed the bone marrow specimen of Plaintiff in or about May 2002), Defendants.



13128/04

Philip G. Minardo, J.

Upon the foregoing papers, plaintiff's motion (No. 1380) for an extension of time to serve an Amended Summons and Complaint is denied, and defendant Aly's cross motion (No. 1949) to dismiss the action is granted.

This is an action to recover compensatory damages for personal injuries allegedly incurred by plaintiff due to defendants' medical malpractice. Plaintiff moves by Order to Show Cause for an order extending the time within which to serve the amended pleadings upon named defendant Mahmoud Aly ("Aly") and upon defendant Dianon Systems, Inc. ("Dianon"), named herein as "XYZ Medical Laboratory," neither of which has yet been served with a summons or complaint.

Defendant Aly cross moves to dismiss the action as barred by the Statute of Limitations applicable to medical malpractice claims.

According to plaintiff, this action was commenced on or about November 1, 2004, one month before the Statute of Limitations would have run, by the filing of a Summons and Complaint naming Aly and "XYZ Medical Laboratory" as defendants.

According to the complaint, plaintiff was a patient of the defendants from April 2002 to [*2]May 2002. Plaintiff alleges that the defendants, jointly and severally, "failed to properly diagnose, care for and treat him, including the failure to appropriately evaluate leukocytosis, the failure to perform an appropriate physical examination, the failure to obtain a proper history, the failure to properly analyze plaintiff's bone marrow specimen, erroneously diagnosing leukemia in plaintiff, erroneously informing plaintiff that he had a shortened life expectancy and other failures." As a result of these actions, plaintiff allegedly "sustained severe injuries and complications, including a morbid fear of cancer, anxiety, depression, mental anguish, the performance of multiple unnecessary bone marrow aspirations, the performance of multiple unnecessary bone marrow biopsies and the performance of other unnecessary medical testing, among other injuries."

As acknowledged by plaintiff, the time within which to serve defendants with copies of the Summons and Complaint expired on March 1, 2005 (CPLR 306-b).[FN1] It is undisputed that neither defendant has yet been served with process.

In support of his motion for leave to file a late, and amended, Summons and Complaint, plaintiff's counsel alleges that the precise spelling of Aly's name, his address, and the precise

identity of "XYZ Medical Laboratory" were uncertain or unknown at the time of filing, which was made pursuant to CPLR 203(c) to toll the Statute of Limitations. In addition, he states that for the six months preceding this application, he was unable to contact plaintiff to learn defendants' actual identities, despite having made more than one hundred telephone calls to him, all without answer. Counsel states that he obtained the phone number of plaintiff's mother sometime in February of this year, and that plaintiff eventually contacted him on March 14, 2005. According to counsel, plaintiff "finally provided [him] with the required information on or about April 15, 2005," six weeks after the 306-b extension period had expired. Counsel brought on this application for an extension by Order to Show Cause on May 3, 2005.

Defendant Aly opposes the requested relief and cross moves to dismiss the complaint as against him on the grounds that (1) plaintiff failed to properly commence this action before the expiration of the applicable Statute of Limitations; and (2) plaintiff's counsel has not shown that he made a diligent effort to obtain the information required to obtain jurisdiction in a timely manner.

Defendant Dianon also opposes plaintiff's motion, arguing that (1) the original summons and complaint failed to adequately describe "XYZ Medical Laboratory" as required by CPLR 1024, and that Dianon could not have known from the description contained therein that it was the intended defendant; and (2) in any event, plaintiff has not demonstrated that he made genuine efforts to identify the laboratory prior to the expiration of the Statute of Limitations.

CPLR 306-b requires that service of process upon a defendant be made within 120 days after an action is commenced by filing. An ameliorative provision allows for an extension of the time within which to serve process, which may be granted in the court's discretion "upon good [*3]

cause shown or in the interest of justice." As in the case at bar, the efficacy of this provision is demonstrated most clearly when the Statute of Limitations period is about to run.

It is now well-settled that the "good cause" and "interest of justice" branches of the statute contemplate separate grounds for an extension and are defined by separate criteria. "Good cause" requires a threshold showing that plaintiff has made reasonably diligent efforts to make timely service, while the "interest of justice" standard provides a more flexible ground for the exercise of the court's discretion (Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]).

In view of the extreme lack of diligence shown by plaintiff in the prosecution of this action, in which no discernible effort other than the redundant and obviously fruitless telephone calls was expended, it cannot be said that plaintiff has shown "good cause" for his failure to timely serve defendants. Plaintiff himself obviously made no effort to contact his own attorney until well after the Statute of Limitations had expired, and counsel presents no indication of efforts on his part to ascertain the information allegedly required for service other than repeatedly calling his unresponsive client.

Nor can it be said that the "interests of justice" requires an extension of time within which to effect service of the summons and complaint upon defendants. Plaintiff's lack of diligence is a significant, albeit not controlling, factor in the application of this standard (Slate v. Schiavone Constr Co, 4 NY3d 816 [2005]). Here, viewed in light of other relevant factors, including the inherent prejudice to the defendants, and the plaintiff's failure to establish that he had a meritorious claim, plaintiff is not entitled to an extension in the interest of justice (see Kazimierski v. New York Univ, 18 AD3d 820 [2nd Dept 2005]).

This same lack of effort would preclude service upon defendant Dianon, even had it not

been precluded under CPLR 306-b. To use the "John Doe" method of making an unknown person a party, it must be shown that plaintiff made genuine efforts to ascertain the defendants' identities prior to the running of the statute of limitations (CPLR 1024; Tucker v. Lorieo, 291 AD2d 261 [1st Dept 2002]). No such efforts have been demonstrated here.

Accordingly, it is

ORDERED that plaintiff's motion (No. 1380) for an extension of time to serve an Amended Summons and Complaint is denied; and it is further

ORDERED that the motion (No. 1949) of defendant Mahmoud Aly, M.D. to dismiss the action as to him is granted; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

ENTER

Dated: August 31, 2005_______________________________________

J.S.C. Footnotes

Footnote 1: According to defendant Aly's counsel, Aly last saw plaintiff on September 11, 2002, so that "assuming that the 'continuous treatment' doctrine applies, the statute of limitations expired on March 11, 2005," two and one-half months prior to the instant Order to Show Cause.