Sanoff v Sokol

[*1] Sanoff v Sokol 2007 NY Slip Op 51412(U) [16 Misc 3d 1113(A)] Decided on July 20, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 20, 2007
Supreme Court, Richmond County

Dara Sanoff, Plaintiff,

against

Dr. David J. Sokol, Esq., and Dr. David J. Sokol, Attorneys at Law, Defendants.



100105/05

Philip G. Minardo, J.

The third-party defendant Nationwide Court Services (hereinafter "Nationwide") moves for summary judgment dismissal of Third-party complaint, or, alternatively, for an order severing the Third-party action pursuant to CPLR §1010.

In opposition to the motion to dismiss, the Third-party plaintiff Dr. David J. Sokol (hereinafter "Sokol") argues that the Note of Issue was served on June 19, 2006 and the Third-party defendant filed their motion on May 15, 2007, which is almost a year after the Note of Issue was served. The Third-party defendant did not file their motion within the allotted 60 day period, as required under the Richmond County Supreme Court rules and the preliminary conference order. Therefore its motion is untimely.

In support of the instant motion to dismiss, Nationwide presents the following to excuse its late filing of the motion. First, Nationwide never had an opportunity to contest liability or damages because the Plaintiff and Defendant entered into a stipulation on April 24, 2006, certifying that discovery was complete before the Nationwide's appearance in this matter. Second, Nationwide was not served until March 24, 2006, only two months before the Note of [*2]Issue was served. Third, Nationwide was not named in the caption on the Note of Issue, proving that it was never served with this document. Furthermore, Nationwide's untimely motion should be excused because Sokol never complied with CPLR §3402(b), which states that "any party bringing in a new party shall within five days thereafter serve him with the Note of Issue and file a statement with the Clerk advising him of the bringing in of such new party and of any change in the title of the action with proof of service of the Notice of Issue upon the new party.'"

Late dispositive motions must be denied except with leave of court "on good cause shown." (See Brill v. City of New York, 2 NY3d 648 [2004]). "A showing of good cause for delay in making the motion requires a satisfactory explanation for the untimeliness rather than simply permitting meritorious, nonprejudicial filings, however tardy." (Id.; see also Gibbs v. McRide Cab Co., 781 NYS2d 747 {10 AD3d 671} [2nd Dept. 2004]; Thompson v. New York City Board of Education, 781 NYS2d 617 {10 AD3d 650} [2nd Dept. 2004]). Here, Nationwide has shown good cause since the Plaintiff failed to include Nationwide in the caption of the Note of Issue and apparently never served Nationwide. Further, Sokol failed to comply with CPLR §3402(b). The court record indicates that the Third-party complaint was served on March 29, 2006 and answered on June 16, 2006. Apparently, the Plaintiff did not know of the commencement of the Third-party action when she filed the Note of Issue.

Accordingly, this court finds Nationwide has established good cause for its delay in making its dispositive motion.

This court makes the following findings of fact. That between March 16, 1998 and July 6, 1999, Dr. Robert Vitolo performed breast implant surgery and treatment on the Plaintiff. The Plaintiff claims that personal injuries resulted from the malpractice of Dr. Robert Vitolo during this treatment period. On July 20, 2001, the Plaintiff retained Defendant SOKOL to prosecute a medical malpractice action against Dr. Robert Vitolo. On July 30, 2001, the defendant purchased Index number 114483/01 and filed a complaint in Supreme Court, New York County.[FN1] Pursuant to CPLR §306-b, the Defendant had 120 days to serve the summons and complaint upon Dr. Vitolo, or until November 30, 2001. Sokol never attempted to effectuate service upon Dr. Vitolo during this 120 days period nor did he move for an extension of the 120 day period. The applicable statute of limitations for the underlying action expired on January 6, 2002. On April 3, 2002, Sokol retained Nationwide, to serve process upon Dr. Vitolo. On April 8, 2002, non-appearing Third-party defendant, TERRIQUE BROWN, an employee of Nationwide, served a copy of the summons and complaint on Larry"Moe," co-tenant at 1067 Fifth Avenue, New York, NY The process server did not recall what type of building it was at a traverse hearing.

After Dr. Vitolo answered the summons and complaint, Dr. Vitolo moved to dismiss the action for lack of jurisdiction and for failure to timely serve the initiatory papers upon him pursuant to CPLR §308 and §306-b. The Plaintiff then cross moved the court for an extension of time beyond her allotted 120 days under CPLR §306-b nunc pro tunc for "good cause shown." Sokol's reasoning for his negligence to properly serve Dr. Vitolo during the 120 day period was the joining of his office with another attorney whose office was rendered unsuitable to occupy due to the September 11, 2001 attacks. In support of his motion the Sokol did not mention that Nationwide was a responsible party for the late service. [*3]

The issues of personal service and for an extension of time to make service under CPLR §306-b were referred to J.H.O. Vincent Pizzuto, on February 20, 2004. J.H.O. Pizzuto found service of process was defective since there was no evidence that the person who was served had authority to accept service on behalf of Dr. Vitolo. J.H.O. Pizzuto did not discuss nor did he render a decision regarding Sokol's CPLR §306-b motion. Be that as it may, the extension afforded by CPLR §306-b is applicable when service is timely made within the 120 day period but is subsequently found to have been defective. (See Earle v. Valente, 302 AD2d 353 [2nd Dept. 2003]).

On January 10, 2005, the Plaintiff filed the instant verified complaint seeking damages for legal malpractice against Sokol. Issue was joined by defendant SOKOL by service of its Verified Answer to the Complaint on March 13, 2005. On May 10, 2006, Hon. Justice Thomas P. Aliotta granted the Plaintiff's motion for partial summary judgment on the issue of liability against Sokol.

On March 24, 2006, Sokol commenced a Third-party action by service and filing of a Third-party complaint against Nationwide. On June 16, 2006 Nationwide answered the complaint, denied the allegations, and raised the affirmative defense that the action is barred on statute of limitations grounds and the Plaintiff did not suffer any injury as direct or proximate cause of Nationwide's actions.

In order to be granted dismissal, Nationwide must demonstrate that its negligent act was not the proximate cause of the plaintiff's damages. (See Wragge v. Lizza Asphalt Constr. Co., 17 NY2d 313 [1966]; Cisse v. S.F.J. Realty Corp., 256 AD2d 257 [1st Dept. 1998]). Here, Nationwide has established that Sokol was the proximate cause of Plaintiff's damages because Sokol waited more than five months after the expiration of the 120 day period under CPLR §306-b, and more than three months after the expiration of the statute of limitations to retain Nationwide to effect service.

Accordingly, since any action taken against Dr. Vitolo was already barred by the statute of limitations prior to Nationwide's involvement in the underlying medical malpractice action, any act of negligence by Nationwide would be moot and not a proximate cause of Plaintiff's damages.

Accordingly, Nationwide's motion for summary judgment dismissing the Third-party complaint is granted.

This shall constitute the decision and order of the court.

ENTER,

_____________________________

J.S.C.

Footnotes

Footnote 1: Venue was subsequently changed to Richmond County under Index No. 12992/02 by order of Justice Eileen Bransten.