Munoz v New York Presbyt. Hosp.

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Munoz v New York Presbyt. Hosp. 2010 NY Slip Op 33889(U) June 2, 2010 Sup Ct, NY County Docket Number: 112223/09 Judge: Alice Schlesinger 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. SCANNEDON6/7/2010-----~ [* 1] ··--·----· - · - - - SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY ALICE SCHLESINGER PRESENT: JA-PART 16 .Ju.<:tl~R Index Number : 112223/2009 INDEX NO. MUNOZ, MARISOL MOTION DATE vs_ MOTION SEQ. NO. NY PRESBYTERIAN HOSPITAL MOTION CAL NO. SEQUENCE NUMBER: 001 DISMISS ACTION 1 this motion to/for - - - - - PAPERS NUMP!:RED 1 ¢uui:;a 01 Motion/ Order to Show Cause - Affidavits - Exhibits ... z Answering Affidavits - Exhibits Ul Cross-Motion: Ul 0 ~ Replying Affidavits __ _________ ______.__...,. ---------------~ D Yes ~No cc (!) wz ui== ~ => -, ...J Ul ...J 0 0 u. I- w c ::c w ICC CC cc 0 ~ u. w cc > ...J ...J => u. 1- u w D.. Ul w cc ~ w id: Ul u z 0 i== 0 J Dated: s- (.,:yyJ if ~ ~ dd(~ I ~N-ANAL DISPOSI~;:~ C FINAL DISPOSITION appropriate: 0 DO NOT POST Check one: Check if JUN 0 2 ZOlO 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -~----------------------------~--------------------~--------~-~-~~-----)( MARISOL MUNOZ, Index No. 112223/09 Plaintiff, Motion Seq. Nos. 001 & 002 -against- ~~;:'vi~~~;:~~~~~~l.A~-~-~SPITAL, ):.1 (. ~ RA'KERRY RAHMAN, M.D., DOUGLAS NOWAK, M.D., MAURIZIO MIGLIETTA, M.D., v(/-t ~ () MICHAEL ARCARESE, M.D., MARY ELLEN B~, M.D., O 1 and STEVEN D. MEED, M.D., ~4',./\'~. <o~ . , rl}?'>--o ""'<:''9..n ~-1-~---------~---~-~-----~~------------~-----~----~-~~---~~~--)( \$'().,<::: 'IJ Defendants. SCHLESINGER, J.: i':)C4$' Plaintiff commenced this medical malpractice action by filing a summons and complaint on August 27, 2009. As the last date when the alleged malpractice occurred was June 19, 2007, the statute of limitations would have expired two and one-half years later, on December 19, 2009. Therefore, when this action was commenced, it was commenced timely. Pursuant to the CPLR, plaintiff had 120 days from the date of commencement to serve the various defendants. With regard to two named defendants, specifically Dr. Melvin Rosenwasser and Dr. Mary Ellen Bass, service was allegedly made on them at their offices at 622 West 168th Street in New York City on September 9, 2009, by substituted service to Ms. Shirley Maragh, an employee of New York Presbyterian Hospital. Issue was joined on behalf of these defendants and others on October 26, 2009, wherein the answer contained a defense of lack of personal jurisdiction vis-a-vis these two defendants. Following up on this defense, these two doctors moved on December 23, 2009, to dismiss the action against them with prejudice for lack of jurisdiction. In that motion, defendants pointed out that the affidavits of service showed an address of 522 [* 3] West 1681h Street, not 622. Also, the moving papers contained affidavits from the two doctors indicating that they had never received notice of the action. The plaintiff, presumably soon after receiving this motion, attempted to re-serve these doctors on January 11, 2010. This time the process server went to 622 West 1681h Street to serve the papers and was referred to another address. In a second motion, this time brought by the plaintiff by Order to Show Cause, the process server indicates that this is the second time he went to the 622 address. 1 In this Order to Show Cause plaintiff is moving pursuant to CPLR §306-b to extend her time to serve the two moving doctors. Over the opposition of these doctors, I am granting plaintiffs motion. Section 306-b allows the Court to grant such a motion if the Court finds either that good cause exists for the granting of the motion, or if the Court finds that the interest of justice would be served. I find in this case that good cause does exist, and it would be in the interest of justice to allow additional time for service. While I am not commending the plaintiff for having failed to note the jurisdictional defense asserted in the answer and for having failed to take steps to deal with that issue in a more timely way, still oftentimes defendants put in boiler plate defenses which are not meant to be taken seriously. Here, I do not believe that anything would be served by ordering a traverse hearing wherein the process server would provide sworn testimony confirming his affidavit and the two doctors would be forced to come in to testify that they did not receive notice. Such an exercise would accomplish little, as it could still be followed by a motion pursuant to CPLR §306-b if the plaintiff lost. 1 The original motion brought by the defense was set down for oral argument on May 12, 2010. At that time this Court directed the plaintiff to bring on this Order to Show Cause to ask for permission pursuant to Section 306-b to extend their time for service. 2 [* 4] Moreover, the plaintiff here did attempt to remedy any defect which could have occurred either by the process server having gone to the wrong address in the first instance, or in his having made a mistake in writing 522 West 168th Street when he meant to write 622. Plaintiff did attempt to re-serve the doctors again on January 11. This is not a situation similar to the cases cited by the defense, such as Johnson v. Concourse Village, 69 AD3d 410 (1st Dep't 2010), Posada v. Pelaez, 37 AD3d 168 (1st Dep't 2007), or She/kowitz v. Rainess, 57 AD3d 337 (1° 1 Dep't 2008) wherein the plaintiffs neglected their obligations and waited far too long before they tried to remedy the service problem. Rather, it is more like the case of Murphy v. H~ppenstein, 279 AD2d 410 (1st Oep't 2001) where the Court found that extensions of time should be liberally granted whenever plaintiffs have been reasonably diligent in attempting service, regardless of the expiration of the statute of limitations after filing and before service. That is the situation here. I find that the plaintiff has been reasonably diligent, she has asserted a meritorious claim, and no discernable prejudice by the defendants has been shown. Accordingly, it is hereby ORDERED that the motion to dismiss by the defendants Dr. Melvin Rosenwasser and Dr. Mary Ellen Bass is denied; and it is further ORDERED thatthe motion by the plaintiff to extend hertimeto serve is granted, and plaintiff shall have thirty (30) days from today, June 2, 2010, to serve Dr. Rosenwasser and Dr. Bass by service upon their counsel. This decision constitutes the 1f:e1t the Court. l..1:{) Dated: June 2, 2010 JUN o2 zo1n c1u1v 04 lo ¢ J>olJNry.~f:W . ~R~R!r . IO '§' 0Ff:.";Cf ALICE J sc SCHL . ~

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