Derby-Seyid v Bhansali

[*1] Derby-Seyid v Bhansali 2005 NY Slip Op 52189(U) [10 Misc 3d 1068(A)] Decided on November 1, 2005 Supreme Court, Kings County Levine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2005
Supreme Court, Kings County

ANDREA DERBY-SEYID, Plaintiffs,

against

PUSHPA BHANSALI, M.D., RAMON CABANAS, M.D., THE BROOKLYN HOSPITAL CENTER and THE VICTORY MEMORIAL HOSPITAL, Defendants



23764/04

Joseph S. Levine, J.

Defendant Ramon M. CABANAS, M.D., moves to dismiss plaintiff's claims against him on the grounds that plaintiff failed to obtain personal jurisdiction over him by failing to serve Dr. CABANAS in compliance w/CPLR 308(2)[FN1] & CPLR 306-b[FN2]. In the event the court finds service was untimely, the plaintiff cross-moves for an order pursuant to CPLR 306-b to extend plaintiff's time to serve defendant CABANAS. In reply to the plaintiff's cross-motion and on oral argument, defendant maintains that the stay did not apply to service of process only to proceedings, but does not make an argument for prejudice in the event an extension is granted.

In reply and in her cross-motion, plaintiff requests that defendant's motion be denied. Plaintiff contends the defendant CABANAS' argument that the action is time barred and service was improper is without merit. Plaintiff maintains that the July 8, 2005 service upon defendant CABANAS was timely and proper as the stay of all proceedings had not been vacated until April 21, 2005, and extended plaintiff's time to effect service, 120 days from April 21, 2005.

Plaintiff's cross motion cites Leader v. Ponzini & Spencer, 97 NY2d 96, 736 NYS 2d 291 (2001) as establishing that the current circumstances gives the Court broad discretion to grant an extension. However, plaintiff's cross-motion fails to make an argument of "good cause" for failure to serve defendant, since "good cause" requires a showing of more than an administrative mistake.

FACTS

This is a medical malpractice action commenced on July 28, 2004, seeking recovery for [*2]alleged injuries sustained in August 2002 by plaintiff, Andrea DERBY-SEYID (herein DERBY-SEYID), while under the care of defendants, VICTORY MEMORIAL HOSPITAL (herein "VICTORY" or hospital), Pushpa BHANSALI, M.D. (herein "BHANSHALI") and Ramon M. CABANAS, M.D. (herein CABANAS).

Prior to the commencement of the action, on July 8, 2004, the Honorable Bernard Fried issued an order staying all actions against VICTORY pending resolution of a declaratory judgment action with the hospital's insurance carrier. The Stay Order was subsequently vacated on April 21, 2005.

Plaintiff asserts that on or about August 9, 2004 a timely attempt to serve defendant, CABANAS, was made at CABANAS' place of business, THE BROOKLYN HOSPITAL CENTER. In opposition, defendant maintains that service was improper because THE BROOKLYN HOSPITAL CENTER was not his actual place of business at the time of service. Although defendant argues that service was improper, no statement of prejudice was made in his answer to the summons and complaint. The March 22, 2005 reply asserted lack of personal jurisdiction for failure to properly serve defendant, CABANAS. In response to CABANAS' reply, plaintiff re-served defendant CABANAS on July 7, 2005, two months after the Stay Order was vacated, at his actual place of business, Levit Medical Arts Pavilon, 1220 Avenue P, Brooklyn, New York 11229.

ANALYSIS

CPLR 306-b provides that, after commencing an action, plaintiff must serve process within 120 days. If plaintiff fails to serve defendant within 120 days, upon motion by defendant, the Court "shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." (CPLR 306-b). In the event plaintiff cannot show good cause, in the interest of justice "[t]he statute empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion" (Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 106 (2001)). (Emphasis added)

In 1998, CPLR 306-b was amended to model Federal Rule of Civil Procedure 4(m). The 1998 amendments granted New York Courts the flexibility to grant extensions of time to serve a defendant upon a showing of good cause or in the interest of justice. Hafkin et al. v. North Shore University Hospital, 279 AD2d 86, 89, 718 NYS2d 379, 2000 NY Slip Op. 11776 (App. Div. 2nd Dept.) citing Mem of Off of Ct Admin No.97-67, 1997 NY Legis Ann, at 319. The 1998 amendments "gave the courts two separate standards by which to ensure an application for an extension to time to serve." Leader at 104.

The standards stated in CPLR 306-b provide that in the absence of a showing of "good cause", the court may "in the interest" of justice use its discretion under CPLR 306-b to extend a plaintiff's time to serve. An extension request in the interest of justice is "unlike an extension request premised on good cause, [because] a plaintiff need not establish reasonably diligent efforts at service as a threshold matter." Leader at 105. In the case at bar, plaintiff's failure to [*3]provide the court with a showing of good cause requires the court to only consider whether in the interest of justice plaintiff should be granted an extension to serve defendant. Discretion in the interest of justice allows the court "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 citing Bill Jacket, L 1997, ch 476, at 14.

In Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95 (2001), the Court of Appeals affirmed three decisions by the Appellate Division, Second Department addressing defective service and extension requests, defined "the standards by which a court may exercise its discretion [in the interest of justice] to extend a plaintiff's time to effectuate service pursuant to CPLR 306-b."Id. at 100, reviewing Leader v. Maroney, Ponzini & Spencer, 276 AD2d 194

(2nd Dept. 2000) (Court granted an extension to a plaintiff, in a professional malpractice action, who failed to timely serve defendant because counsel mistakenly served defendant in accord with the former CPLR 306-b); Hafkin v. North Shore University Hospital, 279 AD2nd 86 (2d Dept 2000)(Court denied plaintiff's extension request since defendant had not received notice of the claim for almost three years, concluding "that the interest of justice would not be served by rewarding the plaintiffs' unexplained and unexcused complete lack of diligence.'"); Scarabaggio v. Olympia & York Estates Co., 278 AD2d 476 (2d Dept. 2000)(Court again granted an extension to a plaintiff who was not informed by the process server that the attempt to serve the defendant at the last known business address had failed because defendant had relocated.) The Court of Appeals, in Leader, concluded that, determining whether the "interest of justice" warrants an extension of time, "requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties .[T]he Court may consider diligence, or lack thereof including the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant." Id. at 105.

In accord with Leader, in Brooklyn Housing and Family Services, Inc. v. Lynch, 191 Misc 2d 341 (Sup.Ct. Kings Co. 2002), the trial court, after applying the Leader factors to similar facts, "in the interest of justice" granted an extension. In Brooklyn Housing and Family Services, Inc., as in this case, petitioners served process within the time permitted by CPLR 306-b, but served respondent at the wrong place of business, a District Rent Office, instead of the address for service provided for by the Rent Stabilization Office. Although plaintiff served the wrong location, respondent knew the proceeding had been commenced. Service was properly made when the error was discovered, but beyond the time permitted by CPLR 306-b. The Court concluded that petitioners failed to show "good cause," but that an extension was warranted in the "interest of justice". The Court listed the appropriate considerations for an "interest of justice" extension: "(1) prejudice to the adversary, (2) the length of the delay, (3) the reason for the error, (4) the potential impact on the judicial proceedings, (5) whether the delay was within the reasonable control of the movant,' (6) whether the movant acted in good faith [citation omitted], (7) whether dismissal of the action would bar a new action due to expiration of the statute of limitations [citations omitted], and (8) whether plaintiff was proceeding pro se." Brooklyn Housing and Family Services, Inc. 191 Misc 2d 341 (Sup.Ct. Kings Co. 2002).

Applying the forgoing principles of law to the case at bar, plaintiff has failed to offer a valid explanation or excuse for the delayed process that would allow an extension for "good [*4]cause." However, in accord with the cited case law, the circumstances would entitle the plaintiff to an extension "in the interest of justice." Plaintiff's delayed service was based on a reasonable misinterpretation of the Stay Order, it is a fair inference that plaintiff's delay was not intended to prejudice defendant. Here, as in Scarabaggio v. Olympia & York Estates Co. 278 AD2d 476 (2d Dept. 2000) and Brooklyn Housing and Family Services, Inc., supra, plaintiff in good faith timely served defendant in compliance with CPLR 306-b on August 9, 2004. After receiving defendant's March 22, 2005 answer, plaintiff attempted to correct the error by re-serving defendant at the corrected place of business. Plaintiff maintains the delayed service was due to confusion regarding the Stay Order against co-defendants. As cited, supra, discretion in the interest of justice allows the court "to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant." Leader at 105. Defendant's March reply confirms that defendant had notice, although not proper, of the commencement of the action. Hence, absent the finding of prejudice, not addressed in defendant's motion, the Court denies defendant's motion and grants plaintiff's cross motion to extend plaintiff's time of service.

The foregoing constitutes the decision and order of the court.

ENTER,

___________________________

J.S.C.

November 1, 2005 Footnotes

Footnote 1: CPLR 308(2). Personal service upon a natural person.

Footnote 2: CPLR 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause. CPLR 306-b allows 120 days after the filing to effectuate service upon the Defendant.