Saxon v Finkelstein

[*1] Saxon v Finkelstein 2012 NY Slip Op 50007(U) Decided on January 3, 2012 Supreme Court, Kings County Steinhardt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 3, 2012
Supreme Court, Kings County

Annette Saxon, Plaintiff,

against

Seth Finkelstein, M.D., JEANY PIERRE- LOUIS, M.D., JAY APRAKASH MODI, M.D., MOHAMMED R. CHAUDHRY, M.D., and KINGSBROOK JEWISH MEDICAL CENTER, Defendants.



12205/11



Attorney for Plaintiff: Law Office of Jane B. Pullen, 55 Farr Lane, Queensbury, New York 12804, 518-761-6161

Attorney for Defendant Seth Finkelstein, M.D., Jeany Pierre-Louis, M.D., Jay Aprakash Modi, M.D. and Mohammed R. Chaudhry, M.D.: Kelly, Rode & Kelly, LLP, 330 Old Country Road, Suite 305, Mineola, New York 11501, 516-739-0400

Attorney for Defendant Kingsbrook Jewish Medical Center: Kopff, Nardelli & Dopf, LLP, 440 Ninth Avenue, New York, NY 10001, 212-244-2999

Marsha Steinhardt, J.

Defendants JAYAPRAKASH MODI, M.D. and JEANY PIERRE-LOUIS, M.D. move [*2]for an Order pursuant to CPLR 3211 dismissing the complaint against them for failure to effectuate proper service pursuant to CPLR 308(2). Plaintiff opposes said motion and cross-moves for an Order pursuant to CPLR 306(b) to extend the time to serve these defendants and pursuant to CPLR 3118 to compel defendants to provide their personal addresses to effectuate service upon them.

Now, upon the foregoing papers and upon oral argument on December 15, 2011 and due deliberation had thereon, defendant's motion to dismiss the complaint is DENIED. Plaintiff's cross-motion is GRANTED to the extent that plaintiff has 45 days from Entry of this Order to effectuate service upon, JAYAPRAKASH MODI, M.D. and JEANY PIERRE-LOUIS, M.D. in the manner set forth herein.

This is an action sounding in medical malpractice wherein plaintiff claims that defendants' failure to position her properly during a vaginal hysterectomy on December 8, 2008 caused a neuropathy to her left hand. Defendants Dr. Modi and Dr. Pierre-Louis are anesthesiologists allegedly involved in the administration of anesthesia to the plaintiff during the hysterctomy.

The action was commenced with the filing of a Summons and Verified Complaint on May 31, 2011. Plaintiff claims that on June 8, 2011 a process server retained by her went to Kingsbrook to serve all defendants in this action. The process server was told by Kingsbrook's risk management office that service would only be accepted for the hospital and that the anesthesiologists would have to be served at their respective departments. It is uncontroverted that the process server returned on July 14, 2011 to the Anesthesiology Department at Kingsbrook to serve Drs. Chaudhry, Modi and Pierre-Louis. Dr. Chaudhry, the Chairman of Anesthesiology at Kingsbrook took his Summons and Complaint and told the process server that he would accept service for Drs. Modi and Jean-Pierre. A copy of the Summons and Complaint was mailed to Modi and Pierre-Louis at the Department of Anesthesia at Kingsbrook on July 15, 2011.

Answers were interposed on behalf of Dr. Modi and Pierre-Louis on or about August 1, 2011. The 120 day period during which defendants were to be served expired on September 28, 2011. The Notice of Motion on behalf of Dr. Modi and Pierre-Louis was filed on October 10, 2011 and plaintiff's Cross-Motion was filed on November 14, 2011.

Plaintiff states that although an Affirmative Defense of lack of personal jurisdiction was made in defendant's Answers, plaintiff's counsel did not attempt to re-serve these defendants believing that jurisdiction was acquired on Dr. Modi and Dr. Pierre-Louis by Dr. Chaudhry's acceptance of the Summons and Complaint. Plaintiff argues that both Dr. Modi and Dr. Pierre-Louis had addresses on the internet showing their place of business at Kingsbrook at 585 Schenectady Avenue, Brooklyn, NY. Plaintiff adds that a colleague also made inquiries and found the above noted address in connection with the subject doctors. Furthermore, she emphasizes that the receptionist who answered the phone number noted on the internet for Dr. Modi advised that Dr. Modi "worked" at Kingsbrook.

Dr. Modi submits an affidavit stating that he is a partner of Brooklyn Kings Highway Anesthesiologists, LLP whose principle office is at Beth Israel Medical Center-Kings Highway Division. He maintains an office at that location and states that it is his actual place of business. He states that he does not maintain an office in Kingsbrook but that he is affiliated with multiple [*3]hospitals including Kingsbrook. Dr. Modi attests that he does not provide information to the website that plaintiff consulted. Likewise, Dr. Pierre-Louis states she never maintained an office at Kingsbrook and that she is presently retired from the practice of medicine. Both doctors state that they were not employed by Kingsbrook at the time of the claimed malpractice nor are they presently employed by Kingsbrook.

CPLR 308(2) permits personal service on a natural person "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business" of the person to be served and, within 20 days thereafter, mailing a copy of the summons to the actual place of business in a specified manner. CPLR 308(2) requires strict compliance and the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made. See, Kearney v. Neurosurgeons of NY, 31 AD3d 390, 391 (2d Dept. 2006); McCray v. Petrini, 212 AD2d 676 (2d Dept 1995); Samuel v. Brooklyn Hosp. Center, 88 AD3d 979 (2d Dept.2011). CPLR 308 (6) states, "(f)or purposes of this section, actual place of business' shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business."

In Kearney v. Neurosurgeons of New York, 31 AD3d 390 (2d Dept. 2006), the doctor sought to be served with process was not an employee of a particular hospital but maintained an office in a building located within the hospital grounds. The Second Department found that plaintiffs failed to establish by a preponderance of the evidence that service was properly effected at the doctor's actual place of business when the summons and complaint were delivered to the main administration/hospital building. See also, West v. Doctor's Hosp., 198 AD2d 92 (1st Dept 1993); Glasser v. Keller, 149 Misc 2d 875, 567 N.Y.S.2d 981.

Recently, in Samuel v. Brooklyn Hosp. Center, 88 AD3d 979 (2d Dept.2011) the Appellate Division held that the plaintiff failed to establish that service was properly effectuated at the doctor's actual place of business. In that case, the summons and complaint was delivered to the risk management office which was in a separate building from where the defendant doctor had his office. The doctor was not an employee of the defendant hospital, but had privileges there, and maintained an office in a building located within the hospital campus and connected to the risk management office via a series of tunnels and corridors.

In this case, the movants are not employees of Kingsbrook. Neither defendant maintained an office at Kingsbrook. Although, acceptance of process by Dr. Chaudhry may constitute substitute service, it cannot be said that such took place at the doctors' actual place of business. Affiliation with the defendant hospital alone does not rise to the level of being an "actual place of business." The information provided by the internet website or the misinformation supplied by the Kingsbrook receptionist or risk management or Dr. Chaudhry do not mitigate the requirement that service be made at the actual place of business. Therefore, the court is constrained to find service of process invalid as to Dr. Modi and Dr. Pierre-Louis.

However, in the interests of justice, the court may grant an extension of another 120 days for plaintiff to properly serve these defendants. CPLR 306-b, which permits the court to extend a plaintiff's time to serve a summons and complaint for good cause shown or in the interest of justice', is applicable where service, timely made within the 120-day period, is found to have been defective. Citron v. Schlossberg, 282 AD2d 642 ( 2d Dept 2001); Lee v. Corso, 300 AD2d 385 (2 Dept 2002); Murphy v. Hoppenstein, 279 AD2d 410(2d Dept 2001); Earle v. Valente, [*4]302 AD2d 353 (2d Dept 2003).

The Court of Appeals in Leader v Maroney, Ponzini and Spencer, 97 NY2d 95 (2001), reviewed the, at the time, new amendment to CPLR 306-b, which plaintiff seeks to invoke herein. The court found that the statute grants courts two separate standards by which to measure an application for an extension of time to serve: "good cause" or "interest of justice." The court, in examining the legislative history of the amendment, found that the "interest of justice" is an additional and broader standard than "good cause" and was proposed to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant. Id. at 105. The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests of the parties. The court may consider diligence, or the lack thereof, along with any other relevant factor including, expiration of the Statute of Limitations, the meritorious nature of the case, the length of the delay in service, the promptness of the plaintiff's request for the extension of time and prejudice to the defendant. Id. at 106; Cooper v. New York City Bd. of Educ., 55 AD3d 526 (2d Dept. 2008) Thompson v. City of New York, 89 AD3d 1011 (2d Dept. 2011); see also, Khodeeva v. Chi Chung Yip, 84 AD3d 1030 (2d Dept. 2011). In sum, "the statute empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion." Leader at 106; Mendez v. New York Methodist Hosp., 87 AD3d 1114 (2d Dept. 2011).

In this case, plaintiff's attempts to serve Drs. Modi and Pierre-Louis have been unsuccessful, however, she has sufficiently demonstrated due diligence in attempting to serve these defendants particularly in light of the misinformation obtained from defendant's agents. Moreover, another factor to consider is the fact that while the action was timely commenced by proper filing, the plaintiff's claim against these defendants would be extinguished without an extension since the statute of limitations expired between the time the summons and complaint were filed and the doctor would be properly served. See, Abu-Aqlein v. El-Jamal, 44 AD3d 884, 885 (2d Dept. 2007); Beauge v. New York City Tr. Auth., 282 AD2d 416 ( 2d Dept. 2001); DiBuono v. Abbey, LLC, 71 AD3d 720 (2d Dept. 2010); Thompson v. City of New York, 89 AD3d 1011 (2d Dept. 2011). The plaintiff also demonstrated that she promptly cross-moved for an extension of time to serve the defendant, and there was no demonstrable prejudice to the defendant. See, DiBuono v Abbey, LLC, supra at 720. Lastly, plaintiff submitted the affirmation of a physician Board Certified in Obstetrics and Gynecology attesting to the merits of the case. The physician states that the injury sustained by the plaintiff is not a known complication of the procedure that plaintiff underwent. She opines that physicians Modi and Pierre-Louis failed to maintain the plaintiff in a proper position before, during and after surgery causing nerve injury to plaintiff's hand.

After a careful analysis of the circumstances of the case, a balancing of the competing interests articulated by the parties, and consideration of all relevant factors, including, inter alia, the expiration of the statute of limitations, and the lack of identified prejudice to these defendants from the delay, the Court, in the interest of justice, grants the Plaintiffs an extension of 45 days from entry of this Order to effectuate proper service upon Drs. Modi and Pierre-Louis pursuant to CPLR 306-b.

Furthermore, "CPLR 308(5) vests a court with the discretion to direct an alternative method [of] service of process when it has determined that the methods set forth in CPLR [*5]308(1), (2) and (4) are impracticable'. " In re Kaila B., 64 AD3d 647 (2 Dept.,2009), quoting,

Home Fed. Sav. Bank v. Versace, 252 AD2d 480 (2d Dept 1998); CPLR 308(5). In light of the

"multiple offices" that Dr. Modi has and the retired status of Dr. Pierre-Louis, the court directs that service upon the attorney for Dr. Modi and Dr. Pierre-Louis, within the time set forth above, by certified mail, return receipt requested, will be deemed good and proper service

This constitutes the decision, opinion and order of this court.

Enter,



J. S. C.