Randall v Professional Radiology

Annotate this Case

Download PDF

Randall v Professional Radiology 2008 NY Slip Op 33721(U) December 1, 2008 Supreme Court, Kings County Docket Number: 2917/06 Judge: Randolph Jackson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. • [* 1] TP OE"n•s ~CQTN FQA SIJ OCNICO OTO. 10/\3111 . ~· ) At an lAS :'enn, Part 11 of the Supreme Cowt of \)te St><e ofNew Yoric, held in and fur t!le Couniy of K.ings. a: !heCounho\IOO, at Civie Center, B!OOkl)'U. New Yo:I<, on the -J._ day of Dcc<:mber, 2008 PR.ES EN T: HON. RANDOLPH JACKSON. Justice. . --- - --- -· - ------ -- ·---· --· . ...... ..... .. x RANDALL SNODGRASS, as Admioistrator ofthe .&rote of B£VE.<u.v GAll'ES..S:<ODORASS, £l Ano., Index No. 2917/06 PbintitlS, PROFESSIONAL RADIOLOGY, et. ol., DcfCJ1dan1£. . - ·-. -- -- -- - ..... - - - -·· .. .. · - · - - - --- - -- - X PJ\OFESSIONALRADIOLCOY, Index No. 15581108 Third-Party Plaintiff, • against • . M'l!NACf'.£).! Mf:<DALL, M.D., Third· Party DcfcndanL I hp followil1g papers numbered I M> 8 rend on this .motion: Notice ofMotion/Orde. to Show Couse/ Petrtion/Cross Motion and Allidovits (Affirin"1iom) Annexed_ _ _ __ _ __ ()ppoitng Affidavits (Aflirm>lions)._ _ __ _ __ _ •• S-7a Reply Affidavi;s (.6J'fWDalions)_ _ __ __ _ _ _ ----~Affidavit (AJ'Iirmaiion)_ _ __ _ _ __ Other Papers_ _ _ __ _ _ _ __ _ _ _ _ __ Upon the foregoing pnpers, defcndant/third·p~1ty defendant Menac.hem Mondell, M.D., sthfa, Mem1 chen Mandell, M.D., moves for on order, pursuant to CPLR ' [* 2] 2~1i'f.K!O'S Oce1~10n 11no0t0\'t , ..TP CCFT'S.MPTN F9R ~J OE'ti!EO .!>TO, iGfl:\1'1~ ~ .. · , . . . . 20S(o), 321.: . ·and 3212,.· dismissing die complaint insofar as asserted against rum or, in l(a)(S) • ' the oltemative, dismissing die action commenced by plaintiff in his individual capacity. Plaintiff Randall Snodgrass, in his capacities as Administrator of the Estue of Beverly Gaines-Snodgrass and bdividually, cross-moves for an order, pursuant :o CPLR 306-b, 200 I, andlor2004, granting him an extension of time to serve Dr. Mandell. AJtemative[y, plaintiff seeks an order, pursuant to CPLR 3215, granting him a judgment by default against Dr. Mn.nde:ll. FluaJly defendancJoi:inLewisRomanelli. M.O. cross-111oves for an order, purSuant to CPLR. 20S(a) and 3211 (a)(S), dismissing the individual oction insofar as asserted against him. This is on action sounding in medical malpractice, wrongful death and leek of infonned COOSCllt which allegedly occurred from June 14, 2000 to Februzry2001. The action was originaliy commenced on September 27 2002, under l»dex No. 38921, by plaintiff as "proposed odministrator of the estate of Beverly Gaines-Snodgrass." In an order dated January 24, 2006, this court (Levine, l) granted defendants' cross motions to dismiss the nciion on the ground that plaintiff lacked srandiog due to his failure to timely appoint an adminis1.tator for the est.. te. By this time, plaintiff Randall Snodgrass h~d obtained Lette~s of Administr.s.tion and, on Jaouary 30, 2006, be com.mencod the instant action, pursuant to CPl.,R 20S(o). Tb;it statute peimits 2 i>laintiffwho has commenced a timely action which is "tenninated in any other = e r than by a voluntary discootinuance, • failure lo obtain personal jurisdiction over the defendant, a dismissal ofthe complaint for neglect to prosecute the action, or a final judgment upon the merits" to ucommence a new action upon the same <ra..nsec1ion or occurrence or seriesof transactions or occurrences withiu six rnonths after the " Paget !l.C.ot I 126 ' '~ ..•, [* 3] 1P DtFT'G ~QTN FOR SIJ Det~E"D.. - OTO 1Ci1l/11 tcnnination provided that the new action would hove been timely commenced at the time of commencement of the prior action and !bat service upon defendont is effeeled wilhin such six-month period.' 1 Tnese motions and cross motions followed. The court tums first to Dr. Mandell's motion to dismiss the complaint for failure io timely serve him with the summons and complaint, as well as to the plcintifl's reJnted cross 1notio11 for an extens:on of rime to serve Dr. MnndcJl. The essential facts are not io dispute. In 2002, plaintiff served Dr. Mandell with the summons and complaint in the piior action by dclivcting a copy to the office manager at Professional Radiology (Professional). Following L])e dismissal of fr.at action, on or about February 28, 2006, plaintiff again seived Dr. Mandell by s=Wg tile pleadings upon the office manager at Professional. Pllrinlilrs aaomoy then forwmlcd the affidavit of service ro Dr. Mandell's counsel. In response, Dr. Mandell 's aaomey sent plai1111f!' s attorneys a Jeaerdatt:d June 30, 2006, advising them that "servi:e has not been properly made on Dr. Mandell [bee<>uso] ... Profcssionn.I Radiology was not Dr. Mandell 's oc11Jnl place ofbusmess nt the time service was otcempted." The letter further noted that the defend'1nt's attorney who had attended the CAMP conference on April 26, 2006, had adviscdplnintifl's nttorney in attendance ti»tcby that Dr. Ma ndell was no longer employed by Professional. Similar notiiications of this defective service were sot to plaintiff's attorneys by letters dated September 5, 2006, April 11, 2006 and November 13, 2007. 1 In :-. decision dated Marcb 3, 2008, the Su)'lreme Court, Appellate Division, Second Dcpo.rt.rntnt, r~vcr'Jed ao order of lllls court datt:d September 17, 2007, ln which the court had granted rearguinent and adhered to its d~cision dated Februllt)' 7, 2007 dismissing the action. 3 Prfted. 1r2&'2018 [* 4] P<19c:;~M 1126 . ·• · ~· In. an affio:muioo submitted with bis motion to dismis.<, Dt. Mandell affio:os that he has not been employed by Professioncl since November 30, 2002. He furthe. states that he did t'l.Ot receive the summons and complaint in this action until l1e \Vas served at his current place of employment on June 20, 2008. The suinroons and complaint were filed on January 30, 2006 and, pursuant to CPLR 306-b, plaintiff had 120 days from that date to timely serve Dr. 1-fandell. Moreover, in order to take advantage of CPLR 205(a}, which permitted th~ recommencement oi lllls action despite the expiratio11 of the statute o fJimitation.i;~ plaintiff\Vas required to commence the action and serve Dr. Mzndell within six months from Janu:rry 24, 2006, the date of . dismissal of the prior action. Plaintiff attempted to meei both these deadlines by serving the office manager at Profe.i;..i;ional on February 28, 2006> ho\vever. it is undisputed that Professional was not Dr. Mandcll's "ac!ual place of business" on Fcbniazy 28, 2006, and, thus, service there did not confer this courtwithjurisdiction over Dr. Mandell. Despite bcille advised by Dr. Mandell's attcmey on numerous occasions that Dr. Mandell had not beeo properly served, plaintiffdid not serve him at his actual placeofbusiness until June 30, 2008, way beyond the time frames set oul in both CPLR 205(a) and 306-b. . As a recirotiou of these facts make plain, Dr. Mandell was l)evcr timely served with the summons and comp1a5nt ln th;s action and. l:b\1$. this court lacks persooaJ jurisdiction over him. Faced with dismissal ofthe complaint on this grou1id, and because the statute of limitatio11s has Jong expired, pJaint!ff seeks an otdet, pursuant to CPLR 306-b extending his time to serve Dr. Mandell. For the reasons that follow, the cou1t denies plaintiff's cross motion. 4 Pnnt.tll: 1mr.?016 [* 5] fP OCFl'$ fti10lN. iOR SIJ DENtE"O, . . . ..,.. '. . . • '~') _When~ plaintiff foils OTO 10113'1\ . .. . . . to cffcetuate_ service upon a defcndan~vilhin 120 days of the filing of the summons aud c;.omplaint, th~ court m3y, upon motion, gr.::.nt an extension of time to serve defendant "upon good cause shown or in lhc interest ofjustice.» The court will assume for the sake of this motion, chac lhe coun ha.s the same discretion to extend the time to serve pu.suant to CPLR 203(a). H.ere, plaintiffhas f2.11ed to demonscrate "good c<1use" for his failure to timely serve Dr. Mondell. As noted, Dr. Mandell's attorneys repeatedly advised plaintifrs attorneys as Iarbacka.s April, 2006 that Dr. Mondell was no longer employed at Professional and lhnt, tl1erefore, service there was ineffecrual. Nonelhclcss, rotber than attempt to rectify the situation immediately, plaiati ffwaited until Juno, 2008 to serve Dr. Mandell at his current place of cmplo)mcnl In an attempt to explain this delay, plaintiff csscutially biames "law office failure" (the firm was ''banaged by lheco-defendants• dismissal motio:is"). HoweVtt, not only is this excuse U."leonvlncing as a reason for the Ions delay, but such "law office failure" does not constitute good cause under CPLR 306-b (soc Leader v l.faroney, Ponzini &. Sp•n~r. 97 NY2d 95, 104-105 (2001]). The altemative "interest ofjustice" standard Guthorized by the statute is more flexible. AJ; Che Court of Appeals expl•ined: The interest ofjustice standard requires n careful judicial analysis of the facrual setting of the case and a b3Jancing of the competing interests presented by the parties. The eomt may eon sider diligence, or lack the.reoi, along with any other relevant foctor in making its ciete!:mination, including expiration of the S1atute of Limitations, the meritorious narure of !he cause of action, lhc length of delay in service, the prompmess of a plaintif!ls request for the exten.siott of time, and prejudice to defendant. No one factor is determinative. (Lededer, 97 NY2d at 105-106). 5 [* 6] TPOEFT'S MOTH FORSIJ DEM!£D ~DlD 10/13(11 ••• ' Q tr Herc, consideration of the foregoing fn<:tors mililatos •z•inst plaintiff. As noted, there \''as a complete lack of diligence in se1ving Dt. Mandell, or in moving for fin extenSion of time in which to serve him, and plainti ff bas failed to establish lhe existence of a meritorious cause of action, either with an affidavit of merit, an expert's report, or from the face of the complaint (see Gem Flooring, Inc. v Kings Park Indus., Inc., 27 AD3d 617 (2006J; Baior.e v Cenua/ Slljfo/k Ho:p., 14 AD3d 635, 636 (2005}; Ko.:lmtenki v New York Univ., ! 8 A.03d 820 [2005]). Thus, the court grants Dr. Maadell's morion co dismiss the complaint as asserted agoinsr him on the grounds that lhe court lacks jurisdiction over Iris person' 3nd pl!!intiff's cross motion for an e.xtension ofti.tne to save De. Mandell is denied. The court also grants theernss motion ofDr. Romanelli c dismiss the "action" o commenced by plaintiff in his individual C4paeity. The court ooras in this regard that, w~Jlc t11e cape.ion reflects plaintiff as an individual party to tllis action, no causes of action o.rc bcought by him in th•t capacity, derivatively or otherwise. Thus, the action must be dismissed, pursuant to CPLR 321I (•X7). for fuil:ure to state a cause of action upon which relief rnoy be gr-clltcd. Additionally, the individual action cannot srand since CPLR 20S(a) only authorizes che onginal plainnff m L'ie dismissed lawsuit to re<:ommc:nce the action desp ite the expiration of the statute oflimitarions (su Reliance lns. Co. v PolyVision Corp., 9 NY3d 52 (2007). Here, plaintiff did not bring an individual action in his prior lawsuit, and, thus, he canno• use chc 5'1ving provision of CPLR 20S(a) to bring the action after the expirJtion of tl1e sta.tutc of limitations. Whjlc Profcssionol seeks rhe i::!lmC relief, it does so , The third-puty action against Dr. Mandell is nor a.trcetcd by this decision. »l•IZ'.:.!M1r.~cws:i (CISlt ~ 6 [* 7] 2917120060tCltiOtllll'(tOl'(lot ' ·. . TPDFFT~MOTtl . •• FORS!JC£Ntl:D..... !>T0,10/1l/11 . . -A · ·· , , . ,·. · c , • . , : . . through nn affi11Dation rather than by bnngiog a motion. The court denies Professional's • • • .-eques~ wilhout prejudice to • .· P&Qi6.90ll12S it bringing a proper and formal motion se.:king that relief. The court h2s considered the panics' remaining contetilioos and finds th::m to be withoul merit. Aecordingjy, that portion ofDr. Manclell's motion for an order dismissing the plaintiffs complaint for lack of pcrsonaljurisdic!ion is granted. Plaintiff's cross motion for nn exlension of t ime to serve Dr. Mandell with tbe summons and complaint is denied. The action is severed and continued against the remainin.g defendants. Dr. Romanelli 's cross motion to dismiss that portion of the comploint corrunenced by plaintiff in his individual capacity, .. asserted against him is granted. This constirutes d1e dec-15100 aod ordu of the eou CE/Jf!ANIPO. PH JACKSON L RT, KINGS COUNTY ~:M-.PARrll DEC 01 2008 7 Pl'w.cd 112612016

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.