Mount Vernon Hosp. Radiology v McGuire

[*1] Mount Vernon Hosp. Radiology v McGuire 2009 NY Slip Op 52242(U) [25 Misc 3d 1222(A)] Decided on November 2, 2009 Mount Vernon City Court Seiden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2009
Mount Vernon City Court

Mount Vernon Hospital Radiology, Plaintiff,

against

Darren McGuire, Defendant.



1813-09



Samuel L. Newman, Esq.

Attorney for Plaintiff

20 Squadron Blvd., Suite 540

New City, New York 10956

Darren McGuire

Defendant Pro Se

50 Foster Avenue

Mount Vernon, New York 10550

Adam Seiden, J.

In this action to recover the balance due for medical services rendered, plaintiff moves for an Order granting leave to file the affidavit of service of the Summons and Complaint in the instant matter nunc pro tunc as of the date of service.

The plaintiff allegedly extended credit to defendant for medical care it provided to him. The defendant allegedly owes a balance of $1,548.00. Plaintiff commenced the instant action on April 10, 2009. Subsequently, plaintiff served the Summons and Complaint pursuant to CPLR § 308(4) on defendant on June 10, 2009, however, the affidavit of service was never filed with the Court. Plaintiff's counsel alleges in the moving papers that he never received an original affidavit of service until August 4, 2009. Plaintiff seeks an Order from this Court permitting the plaintiff to file the affidavit service of the Summons and Complaint nunc pro tunc as of the date of service, that being June 10, 2009.

The failure to file a timely proof of service is a mere irregularity without jurisdictional implications that may be cured by an order pursuant to CPLR §§ 2001 and 2004. Weininger v. Sassower, 204 AD2d 715 (2nd Dept. 1994); Rosato v. Ricciardi, 174 AD2d 937 (3rd Dept. 1991). However, a court cannot invoke the device of nunc pro tunc to effectively grant a default judgment retroactively. Id.

In the case at bar, granting plaintiff permission to file the affidavit of service nunc pro tunc as of June 10, 2009 would be in effect granting a default judgment retroactively as defendant's time to answer would have expired on June 30, 2009. As such, the Court grants plaintiff's motion for leave to file its affidavit of service, however, the Court deems it timely served as of the date of this decision. The defendant has twenty (20) days from the date of this decision within which to serve his answer.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion: Ex Parte Motion dated August 6, 2009; Exhibit A.

Dated:November 2, 2009 [*2]

Mount Vernon, New York

__________________________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon

To:

Samuel L. Newman, Esq.

Attorney for Plaintiff

20 Squadron Blvd., Suite 540

New City, New York 10956

Darren McGuire

Defendant Pro Se

50 Foster Avenue

Mount Vernon, New York 10550