Cherney v Raynor

[*1] Cherney v Raynor 2012 NY Slip Op 50640(U) Decided on April 4, 2012 Suffolk County Ct Tarantino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2012
Suffolk County Ct

Stuart B. Cherney, M.D., Plaintiff

against

Joseph Raynor, DAVID GROVER, ESQ., & GROVER & FENSTERSTOCK, P.C. , Defendants



11-34842



David J. Sobel P.C.

Attorney for Plaintiff

811 West Jericho Tpke, Ste 105W

Smithtown NY 11787

Grover & Fensterstock P.C.

By: Simon B. Landsberg Esq

Attorneys for David Grover, and Grover & Fensterstock P.C.

750 Third Ave Ste 900

New York NY 10017

Andrew G. Tarantino, J.

This action was commenced by filing a Summons and Verified Complaint on December 1, 2011. Plaintiff alleged that Defendant Raynor, to whom Plaintiff rendered medical services, signed a lien in Plaintiff's favor against proceeds Raynor anticipated receiving in a personal injury suit. Plaintiff alleged that Defendants Grover and Grover and Fensterstock PC acknowledged the lien, and that the lien has not been paid by any Defendant. In this pre-answer motion, David Grover Esq and Grover & Fensterstock PC [hereinafter Defendants], moved this Court for an Order dismissing this action by Notice dated March 9, 2012. Plaintiff, Stuart Cherney MD, by his attorney David Sobel Esq., opposed the motion. In the motion, Defendants alleged:

1. the claim against David Grover, as individual, should be dismissed because he signed the lien on behalf of the P.C.;

2. the summons was fatally defective because it named the wrong court; and

3. service of process was not attained because Defendants' Suffolk County address where process was served was only a satellite office and Defendant Grover only works in the NY City office; and

4. Plaintiff should be sanctioned for frivolous behavior because of the confusion caused when the County Court action was placed before a Supreme Court judge. [*2]

PROCEDURAL HISTORY

Plaintiff's attorney filed a Summons and Verified Complaint bearing Index Number 11-34842. The summons is dated November 1, 2011. Plaintiff alleged that Defendant, Joseph Raynor, and his attorneys, David Grover Esq. and Grover & Fensterstock PC., failed to comply with a lien placed on Raynor's legal file for medical services rendered by Plaintiff. Plaintiff seeks $20,825.00.

Defendants moved to dismiss the action by Notice dated December 19, 2011. The Motion was captioned for County Court, County of Suffolk. Plaintiff opposed the motion on January 20, 2012. Defendants replied on January 24, 2012.On February 23, 2012, Supreme Court Justice William B. Rebolini denied the motion without prejudice noting that the papers were captioned "County Court County of Suffolk" and upon perusing the motion determined that the action was intended for County Court.

Defendants have now moved this Court by Notice dated March 9, 2012. Plaintiff has answered, and Defendants, again, filed a reply.

FACTS

The summons dated November 1, 2011 was captioned "County Court, County of Suffolk." It further stated, "You are hereby summoned to appear in the County Court of the County of Suffolk, State of New York, at the office of the Clerk of said Court at 210 Center Drive, Riverhead, NY." That address is the County Court, not the Supreme Court, in Suffolk County. The basis of venue was set forth as Plaintiff's place of business. The first motion, the answering papers, and reply, were each captioned County Court, County of Suffolk. The second motion was captioned Supreme Court State of New York, County of Suffolk.

The complaint stated that Joseph Raynor was and still is a resident of the County of Suffolk, that David Grover Esq. maintained an office in Hauppauge, County of Suffolk, and that Grover & Fensterstock PC maintained an office in Hauppauge, County of Suffolk.

The lien, signed in favor of Dr. Stuart Cherney, was executed by Joseph Raynor. It authorized and directed [his attorneys] " into whose hands [sic] or any of the proceeds shall come, to hold in trust for any pay over to Dr. Stuart Cherney such sum as in [sic] claimed by him." It then states, "I David Grover, attorneys for the above named patient, do hereby acknowledge the above assignment," followed by a signature. The attorney signature does not indicate that David Grover signed it on behalf of the law firm.

Plaintiff submitted pages from the Grover & Fensterstock PC web site. When one goes to the web page submitted by Plaintiff, there is a toll free number without any indication where the law office is located. There is a left-side tab labeled "contact us." When clicked, the next page is labeled "our addresses" followed by three hyperlinks, one to each of New York City, Long Island, and Connecticut. The Long Island office is at Ten Newton Place, Suite 201, Hauppauge NY 11788. The Long Island office has a 631-area code as a phone number and a telefax. None of the three choices of location stated which the principal office is, and each provided area-code specific telephone numbers. Plaintiff also submitted proofs of service, filed with the Court Clerk on December 16, 2011. Two affidavits, one for David Grover and one for Grover & Fensterstock PC, were served by delivering a copy of the summons and complaint to Debra Ali, identified as Managing Agent, at the Hauppauge address, on December 6, 2011. A [*3]copy was then mailed on December 7, 2011, to David Grover, individually, at the Hauppauge address in an envelope marked "personal and confidential." In the instant motion, Plaintiff submitted proof of service, pursuant to NY Business Corporation Law §306, of the Summons and Complaint on the NY Department of State, dated January 17, 2012.

No proof of service has been submitted by either side that any of the motions or papers was served upon the Defendant Joseph Raynor.

THE LAW

The county court shall have jurisdiction over actions and proceedings for the recovery of money where the amount sought to be recovered or the value of the property does not exceed twenty-five thousand dollars exclusive of interest and costs. NY Const Law Art. 6, §11. The jurisdiction of the county court extends to an action where the defendant, or if there are two or more defendants, where all of them, at the time of the commencement of the action, reside in the county, or where a defendant has an office for the transaction of business within the county and the cause of action arose therein. NY Judiciary Law §190. The term "clerk of the court" shall mean the county clerk. 22 NYCRR §202.5(c). Upon filing the summons and complaint in an action in county court with the clerk of the county, an index number shall be assigned and the fee [ ] shall be paid. CPLR §306-a. The summons shall specify the basis of the venue designated. CPLR §305. A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. CPLR §2101(f). The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within two days after the receipt thereof, he returns the paper to the party serving it with a statement of particular objections. CPLR §2101(f). Due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 1950, 339 U.S. 306, 314, 70 S. Ct. 652, 656, 94 L. Ed. 865, 873 . Personal service upon a natural person shall be made by delivering the summons within the state to a person of suitable age and discretion at the actual place of business [ ] and by [ ] mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential." CPLR §308. Personal service upon a corporation shall be made by delivering the summons to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. CPLR §311 (see also, BCL §306). All [attorney] advertisements shall include the name, principal law office address and telephone number of the lawyer or law firm whose services are being offered. Lawyers Code of Professional Responsibility, DRL-101(H).

DECISION

The Summons, bearing Index Number 11-34842, was captioned County Court County of Suffolk. In his opposition, Plaintiff submitted a copy of the summons with the County Clerk stamp affixed with a December 1, 2011, purchase date. The copy of the Summons that was submitted by Defendants had the index number affixed, and had a handwritten purchase date of 12/1/12 (an apparent oversight as many people confuse the year as New Year approaches). Substantively, the summons was captioned properly, and had the Index Number affixed.

The Court is ignoring the fact that the Defendants' instant motion was captioned in [*4]Supreme Court, which is incorrect.While Justice Rebolini was in Supreme Court when the first motion was submitted, this Court was informed by the Chief Clerk that it was the court's data entry error that submitted the original County Court action to a Supreme Court judge. The error was not attributable to any party, or their attorneys. Now that the court has internally corrected its error, all captions shall indicate County Court, County of Suffolk.

The Summons set forth the basis of venue as "plaintiff's place of business." On its face, such is not a basis for venue in County Court. However, upon reading the verified complaint submitted by Defendants, it clearly alleged that the Plaintiff relied upon Defendants' places of business in Hauppauge. There was no allegation that Plaintiff relied upon Defendant's place of residence. Because the Verified Complaint relied upon Defendants' places of business, the Defendants are not prejudiced by the Court disregarding the defect on the Summons. The Defendants' reply, setting forth a new argument that Grover does not reside in Suffolk, is rejected by the Court as untimely. Such an argument should have been made in the moving papers, especially because Plaintiff did not raise the issue of Grover's residence in his opposition.

The Court equally disregards Defendants' arguments that their Hauppauge office was just a satellite office and that their actual place of business was New York City. There is nothing in its website that indicates that the Defendants' principal office was New York City. As indicated above, when forwarded to the linked pages for each of its three offices, each location has area-code specific telephone numbers and addresses, and none are indicated as being a principle office or satellite office. The Court cannot look into the Defendants' minds to determine their intentions. To accept the Defendants' arguments would create a "round-robin" defense wherein Defendant can contest service at any of its offices by claiming another is the principle office. Instead, it must be viewed from the perspective of the person searching for Defendant and, in this case, one can only conclude that Defendants conducted business at the Hauppauge office. In as much as the CPLR §308 commentaries offer little insight into the definition of "actual place of business," it does state that there is no clear definition. Additional elements supporting the Court's determination were that Defendant Raynor lived in Suffolk County, and used the medical facilities in Suffolk County, i.e., Plaintiff Cherney's services. Thus, one can conclude that Raynor used a law firm located in Suffolk County.Upon the facts presented, there is a real and rational basis to conclude that Defendants operated an office in Hauppauge, Suffolk County.

The remaining issues are service upon Defendant David Grover, as a person, and upon Defendant Grover & Fensterstock PC, as a corporation. As stated above, Plaintiff proceeded with service of the summons and complaint on the NY Department of State on January 17, 2012. Proof of service on the NY Department of State, although occurring after the December 7, 2011, service in Hauppauge, established service of process on Grover & Fensterstock PC. The firm maintained a place of business in Suffolk County, regardless of which county the corporation was "domiciled" (as may be set forth on its certificate of incorporation) and the cause of action accrued in Suffolk County. As for Defendant Grover, service upon a natural person need not be made upon an agent, but merely upon a person of suitable age and discretion at the party's place of business. Defendants did not argue that the person served was not of suitable age. Defendant denied the person was an agent, but did admit that the person served was the common area secretary. Service of process is intended to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [*5]

Based upon the above, it is hereby

ADJUDGED AND ORDERED that Defendants' motions are denied in the entirety; and it is further

ORDERED that the time within which Defendants must file a verified answer is hereby extended pursuant to NY Civ Pract Laws and Rules; and it is further

ORDERED that all parties are directed to appear before the Court, at 1 Court Street, Annex Building, Riverhead NY, on APRIL 26, 9:30AM, to select a trial date.

ENTER

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