Academic Health Professionals Ins. Assn.-A Reciprocal Insurer v SB Clinical Practice Mgt. Plan, Inc.

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Academic Health Professionals Ins. Assn.-A Reciprocal Insurer v SB Clinical Practice Mgt. Plan, Inc. 2019 NY Slip Op 31266(U) May 1, 2019 Supreme Court, New York County Docket Number: 655580/2018 Judge: Marcy Friedman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 05/02/2019 12:09 PM NYSCEF DOC. NO. 267 INDEX NO. 655580/2018 RECEIVED NYSCEF: 05/02/2019 655580/2.018 :t\·J()~J~I<JN §~~~(~~ N'()~ 010 011 rf\:c.: . , et aJ . , ---------------------------------------------------------------------){ HON. JvlARCY S. FRIEDMAN: The following e-fi!ed documents, listed by NYSCEF document number {Motion Seq No 010) 111, 1·12, 113, ii4, 115, 116, 117, 118, 119. 120, 121, 122, 123, 124, 125, 126, 131, 140, 141, 142, 147, "156, 157, 164, 168 EXTEND - TIME were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion Seq No 011) 158, 159, ·rno, 1e1, 162. 163, 165, 167, 169, 170, me, 200, 201, 202. 203, 204, 205. 222 were read on this motion to/for EXTEND - TIME Plaintiff Academic Health Professionals Insurance Association~ A Reciprocal Insurer (Academic) brings two separate motions for an order, pursuant to CPLR 306-h, extending its time to serve the summons and complaint on individual defendant subscribers. Motion Sequence No. OJ 0 involves 1200 physician defendants identified by Academic as "Stony Brook Subscribers." Motion Sequence No. 011 involves 120 physician defendants identified by Academic as "NY1\1C Subscribers," The branch of the motion in Sequence No. 010 for an order, pursuant to CPLR 308 (5), approving alternative service has been withdrawn, as the parties have reached an agreement as to service. 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 05/02/2019 12:09 PM NYSCEF DOC. NO. 267 INDEX NO. 655580/2018 RECEIVED NYSCEF: 05/02/2019 CPLR 306-b provides that if service of the smnmons and complaint is not nmde within the prescribed 120-day period after filing, "the court, upon motion, shaH 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." It is well settled that "[a]n extension of time for service is a matter within the comi~s discretion." (1fJl4.~I.Y..MgrmH:~y,J\mzinL~..S1:~n~fX, 97 NY2d 95, 101 [2001],) A showing of "reasonable diligence" in effecting service is relevant to demonstrate good cause, but is not required to satisfy the interest of justice standard for an extension and is "simply one of many relevant factors to be considered by the court in applying the latter standard." (Id._, at 104; accord Nm1~.~.:ilrl?.~.Y..N§Jl, 161 AD3d 614, 614 [1st Dept 2018].) These factors include "expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiffs request for the extension of time, and prejudice to defendant" (See Leader, 97 NY2d at 105-106.) Applying this standard, the court holds that Academic meets both the good cause and the interest ofjustice standards. The court finds that Academic exercised due diligence in serving the Stony Brook Subscribers based on its ostensibly reasonable expectation that the practice group defendants would accept service for the individuals and based on the effi;rts of its process server to arrange for service through the Legal Department. (Academic ~fomo. In Supp., at 4 [NYSCEF Doc No 112]; Aff of Larry Radler, if 7.) The interest of justice will also he served by affording the 60-day extension requested by Academic, In so holding, the comi finds that A. cadernic lnakes a sufficient showing, at this juncture, of the potential merit of the action (see Leader, 97 NY2d at l 05), and that the delay in service has not been lengthy and has not resulted in prejudice to defendants. (See id.) 655580/2015 Motion Nos. 010 &. 011 Page 2 of 4 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 05/02/2019 12:09 PM NYSCEF DOC. NO. 267 INDEX NO. 655580/2018 RECEIVED NYSCEF: 05/02/2019 The court further finds that the interest of justice will be served by aftording Academic the requested 60-day extension to serve the NYMC Subscribers. As in the case of the Stony Brook Subscribers, Academic did not initially attempt service on the individuals based on its ostensibly reasonable expectation that the practice group defondants would accept service for them. Academic's process server subsequently made an error as to the place at vvhich service should be made. This mistake is excusable as defendants have not made any showing of prejudice, the potential merit of the action has been sufficiently sho-wn, and the delay in service has not been lengthy. (See Leader, 97 NY2d at l 05.) Under these circumstances, the fact that the !20-day deadline for service has passed is not a bar to the granting of the extension. (See f2d Dept 2014]; Vincent C. Alexander Commentaries, McKinney's Cons Lavvs of NY, Book 7B Finally, defendants make no showing that numerous individual subscriber defendants will assert claims in either action that the statute oflimitations has passed during, or prior to, the 120day period. Such passage does not preclude the granting of the extension. (S~-~ Leader, 97 NY2d at 105-106.) Nor \Vill the extension prevent assertion by the individual defendants of any statute of limitations defenses based on the passage of the statute prior to the filing of the summons and complaint It is hereby ORDERED that the motion of plaintiff Academic Health Professionals Insurance Association - A Reciprocal Insurer (Academic) for an order, pursuant to CPLR 306-b, extending its time to serve the summons and complaint on individual defendant subscribers identified in Motion Sequence No. 010 and 011 is granted to the extent that plaintiff's time to 655580/2016 Motion Nos. 010 & 011 Page 3 of4 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 05/02/2019 12:09 PM NYSCEF DOC. NO. 267 INDEX NO. 655580/2018 RECEIVED NYSCEF: 05/02/2019 serve the sunmmns and complaint is extended for 60 days from the date of entry of this order; and it is further ORDERED that nothing herein shall prevent assert1on of any statute oflimit.ations defenses by any of the individual subscriber defendants, ·' .... "".: .,.,,,,,,,,,,,,,,,,,,, DATE APPLICATION: r--·--1 CASE DISPOSED ,.~-~-~~11 GRANTED 1 SETTLE ORDER D DENIED 1--······ CHECK IF APPROPRIATE: t .J.··· l·~"· ......,.··:../ MARCY s,,· . ·ffilB)MAN, J.S,C . .·' ..· :· ·--·--)Y(·::·< ,.,,_.( - ~ t . · :·: :. :::::·c...,.(~;c'.'.'.~{ ·-,~e:.".'"·>· 5!1/2019... CHECK ONE: , f"x"'l '-···· NON-FINAL DISPOSITION !"""'] GRANTED IN PART u ~ I INCLUDES TRANSFER/REASSIGN .LJ !;._•...... ...,~ 65558012018 Motion Nos. f..110 & 011 SUBMIT ORDER FIDUCIARY APPOINTMENT \ D D OTHER REFERENCE Page 4 of4 4 of 4

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