Stiglitz v Amber Ct. of Westbuty, LLC

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Stiglitz v Amber Ct. of Westbuty, LLC 2021 NY Slip Op 33584(U) January 25, 2021 Supreme Court, Nassau County Docket Number: Index No. 610952/19 Judge: Denise L. Sher 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. INDEX 610952/2019 NO. 610952/2019 INDEX NO. FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM 01/26/2021 RECEIVED NYSCEF: NYSCEF: 01/26/2021 94 NYSCEF DOC. NO. 94 DOC. NO. SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YURK HON. DENISE L. SHER PRESENT: . . Acting Supreme Court Justice SUSAN STIGLITZ, as Admit1istrator of the Estate of HESTHER J. KAUFMAN, Deceased, .SUSAN .STIGLITZ, Individually, CHARLES MOSKOWITZ and LEIGH STIGLITZ, Plaintiffs, -against~ TRIAL/IAS PART 30 NASSAU COUNTY Index No.: 610952/19 Motion Seq. Nos.: 03, 04 Motion Dates: 10/13/2020 11/19/2020 AMBER COURT OF WESTBUTY, LLC; MMR CARE CORP. d/b/aDALEVIEVl CARE CENTER and ISHA PATHAK, M.D., Defendants. The following papers have been read on these motions: Papers Numbered Notice of Motion (Seq. No. 03). Affnmation and Exhibits Notice of Cross-Motion (Seq. No. 04). Affirmation and Exhibits .Affirmation in Opposition to Ctoss~Motion (Seq. No. 04) and in Reply to · · · Motion (Seq. No. 03) and Exhib_its 1 . 2 3 Upon the fore&oing papers, itis ordered that the motions are decided as follows: Defendant lsha Pathak, M.D. ("Dr. Pathak") moves (Seq. No. 03), pursuantto CPLR § 321 l{a)(8), foran order dismissing plaintiffs' Amended Complaint as againsther on the groµnds that plaintiffs failed to acquire personal jurisdiction over her; and moves, pui'suant to CPLR § 306-b, for an otdet dismissing the Amended Complaint with prejudice due to plaintiffs' failure to timely complete service ofthe Supplemental Summons and Amended Complaint on her. [* 1] 12 11 of 12 INDEX INDEX NO. NO. 610952/2019 610952/2019 FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 Plaintiffs oppose the motion (Seq. No. 03}and cross-move (Seq. No. 04), pursuant to CPLR ·§§ 2005 and 3 06(b), for an order excusing their failure to serve the Supplemental Sµmmons and Amended Complaint upon defendant Dt; Pathak on or before June l, 2020, on the grounds that Executive Orders numbered 202 through 202.72 provided that aj.1 deadlines were stayed until November3, 2020; and because plaintiffs' delay inserving defendant Dr. Pathak was the result of excusable default and delay caused by COV1D 19-re]ated illnesses and hardships suffered by plaintiffs' com1se:I; and move, pursuant to CPLR §§ 2005 and 306(b), for an order excusing their failure to personally serve a copy of the May 1, 2020 Order of the Honorable Denise L, Sher upon defendant Dr. Pathak togethetwith the Supplemental Surn.inons and Amended Complaint, on the grounds that such failure was the result of excusable default and delay caused by COVID 19-related illnesses and hardships suffered by plaintiffs' counsel, and on the grounds that once defendailtDr. Pathak's attorney·registered his email address, he received email service ofsame prior to November3, 2020,tendering defendant Dr; Pathak's motion (Seq. No. 03) moot; and, after grantingplaintiffs' cross-motion (Seq. No. 04), move for an order conforming tbe provisions of the Courfs May 1. 2020 Order with Governor Cuomo'cs Executive Orders 202 through202; 72, or, in the alternative, issuing an order deeming plaintiffs' Supplemental Swnmons, Amended Complaint.and.a copy of the Court's May 1, 2020 Order as having been timely and properly served on defendant Dr. Pathak thereby renderi11g her motion to dismiss (Seq. No. b3) moot. Defendant Dl".Pathakopposes the cross-motion (Seq. No. 04). ln support of defendant Dr. Pathak I s motion (Seq. No,. 03 ), her couns.el submits, in pertinent part:; that; "[t]his action sounding 1n medical malpractice was commenced by plaintrfr s . . . . ! . filing of a. suinrrions and coinplaint on August 9; 2019; .... On February' 6, 2020, plaintiff tiled a .cross-motiOn seeking leave, putsµant to CPLR § 302 5(c), to allow the plairttiffto amend her 2 [* 2] 2 of 12 INDEX INDEX NO. NO. 610952/2019 610952/2019 FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 complaint and serve a supplemental summons and complaint. This motion practice. resulted (sic) an order dated May 1, 2020 -and entered into the Nassau County Clerk's Office on May 7, 2020 .... Pursuant to Justice Sher's order, plaintiff was ordered to serve all the parties including the moving defendant, ISHA PATlIAK, M.D., with the supplemental summons and amended complaint by June 1, 2 02 0. Justice Sher's order also directed that a copy of her May 1, 2020, decision and order be served with the supplemental summons and amended complaint .... According to plaintiffs affidavit ofservice on July 6, 2020, Dr. Pathak was served with a copy of the supplemental surnrnons, amendedcomplaint~·artd NYSCEF confirmation at 499 Cold Spring Road, Syosset, New York 11791 .... Issue was joined by defendant, ISHA PATHAK,l\'I.D., Uic) service of her answer on August 13,2020. In her answer, Dr. Pathal< raised several.affirmative defenses including the lack ofpersonaljurisdiction .. ,. It is.respectfully submitted that the plaintiff has failed to properly serve Dr. Pathak and as suchi this honorable court does not have personaljuiisdiction over her .... In short, plaintiffhas failed to properly serve.Dr. Pathak and has not obtainedjurisdiction over her because according to the plaintiff's own affidavit of service, Dr. Pathak was not served with process by June 1, 2020, as directed by this honorable court ii1its order of May 1; 2020.... Instead plaintiff's affidavit of service states that service was made upon Dr. Pathak on July 6, 2020, well after the expiration ofthe deadline set by the court. In addition to beinguntimely, plaintiff's affidavit of service is deficient because it does not indicate that a copy of Justice Sher's order of May 1, 2020 was served on Dr. Pathak ' ' as directed by the court in its order .... In her .attached affidavit, Dr. Pathak has ave~red .that she was not served with a copy of this honorable courf s .order of May 1, 2020 and that she never received a fo 11 ow-up in.ailing .... Likewis.1;1, the acti oh against Dri Pathak shouid be dismissed pur~uant to CPLR § 306-b~ whichteqµires.that a su.mmonsbeservedwithin120 days of filing 3 .........,,. _____ ,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _3 :::........;::.--=--.--=.= of 12_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ [* 3] FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 INDEX INDEX NO. NO. 610952/2019 610952/2019 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 with the county clerk. In the case at bat'; Justice Sher's order permittin,gthe filing of the supplemental summons and a1nended complaint was entered with the Nassau County Clerk on May 7, 2020. Over 120 days has past and Dr; Pathak has still not been properly served with process. As such, pursuant to CPLR§ 306-6, the court should also dismiss this action against Dr. Pathak.'' See Defendant Dr. Pathak's Affirmation in Support of Motion (Seq. No. 03) Exhibits AF. In opposition to the motion (Seq. No. 03) and in support of the cross-motion (Seq. No. 04), counsel for plaintiffs asserts, in pertinent part, that, "[i]tis well-settled that a process server's affidavitestabHshes a prirna fade case as to the method of service and, thus, gives rise to a presumption of proper service', [citations omitted]. It is possible for a defendant to overcome the presumptionof good and proper service raised by a process server's affidavit of service. However; 'bare and unsubstantiated denials' of receipt of service, such as the one stated by Defendant PATHAK in Paragraph 3 ofher September 15,2020 Affidavit ('I never received a copy of the supplemental Su:inntons, amended complaint, and NYSCEF's notification by mail ... ') ... , without more, are patently insufficient as a matter of lawto rebut the presumption of good and proper service attached to the affidavit of service by Plaintiffs"' process server. ... [citation omitted]. Furthermore, although Defendant PAtHAK did not ask for a Traverse Hearing in her Motion to Dismiss; her Affidavit is also insufficient to raise the genuine issues of fact required to warrant a factual hearing. [citations omitted] .... [I]n light of the fact that Defendant PATHAK never denied receiving service· of the Supplemental Summons and Amended Coinplal'.nt at her actµaI home, upon her lawful husband, Naveen Pathak,. Defendant. PATHAK' s Motion fo Di snii s~ for defective service of process for failing to serve• a second copy ofthe afore said plea~ings upon PA.1'HAK via U.S. Mail, mµst be d¢niedt See Plaintiffs' 4 [* 4] 44 of 12 .............................. ____________________ FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 INDEX INDEX NO. NO. 610952/2019 610952/2019 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 Affirmation in Support ofCross~Motion (Seq. No. 04) and in Opposition to Motion (Seq. No. 03) Exhibits Aand C. Counsel for plaintiffs further contends,· in pertinent part, that, "[b] ecause of the Covid-related challenges with which this Affirmant and her family have been struggling since April of 2020, including two (2) month-long Covid-related illnesses suffered by your Affirmant, herself, and a Covid-induced recurrence of metastatic cancer with which your Affirmant's spouse is still suffering and for which he is still receiving treatment, Plaintiffs' counsel erroneously failed to attach a copy of this Court is May 1, 2020 Decision artd Order to the service ·copies of Plaintiffs' Supplemental Summons· and Amended, Complaint served upon Defendant PATHAK on July 8, 2020. In light of this excusable law office failure Plaintiffs seek relief from those provisions ofthe Court's May 1, 2020 Decision and Order as required Plaintiffs to serve a copy ofthe said Decision and Order upon Defendant PATHAK on or before June 1, 2()2 0, pursuant to CPLR §2005. Contrary to the suggestion in.PATHAK's moving papers, Plaintiffs' failure· to· serve a copy of the May .1, 2020 Decision and· Order upon her before June 1, 2020 did not create ajurisdictional defectin said service ofptOcess and,indeed, PATHA.Kdid notcite to any case law in support of her argument to that effect. .... [P]laintiffs respectfully submit that their good and proper ;c;ervice.oftheSupplemental Summons and Amended Complaint upon Defendant PATHAK at home, via personal service upon her husband, did not give rise to a jurisdictional defect simply because they failed to includeacopy ofthe Court's May 1, 2020 Dedsion.a11d Ordet in the pleadings served upon Defendant PATHAK. The .obligation to serve a copy of th~ May I~ 2020 Decision aridOrder on PATfIAK prior fo Jm1e l, 2020, emanated from the Order,itself; it was h.ot a stafototy reqt1irement stated by arty of the statutes PATHAK claimed as the bases fat her within Motion. Accordingly, this Court ma:y grant Plaintiffs relief .5 [* 5] 5 of 12 __ __ '"""' .,,,, ,, , ___ , ___________________ INDEX INDEX NO. NO. 610952/2019 610952/2019 FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 from that provision ofthe Decision and Orderrequiring Plaintiffs to serve PATHAI<. with a copy of the Order pursli,mtto CPLR §2205, by 'exercising its discretion in the interests of justice to . . excuse delay or default resulting from law office failure/ .. , In this eta of Zoom conferences and E-filecl do<:uments, Plaintiffs respectfully ask the Court to takejudicial notice of the fact that, once Plaintiffs Completed servke of the Supplemental Summons and An1ended Complaint upon PATHAK on July 8, 2020, her malpractice carrier retained legal counsel for her and such counsel registered his einail address on the NYSCEF site and received e-mailed Se'rvice of the May 1, 2020 Decision and Order at that time - four (4) months prior to the date whert Governor Cuomo lifted the toll on legal deadlines on November 3, 2020. Thus, PATHAK cannot claim prejudice ifthe Court relieves Plaintiffs of its own Court-ordered obligation to serve the May 1, 2020 Ordetupon PATHAK by June 1, 2020. In light ofthe foregoing, and pursµantto CPLR §2205, Plaintiffs respectfully a:sk the Court to excuse their failure to serve a copy of tlle May 1, 2020 Decision and Order upon Defendant PATHAK oil or before Junel, 2020, and to deny PATBAK' s Motion to Dismiss in its entirety}' Counsel for plaintiffs further asserts, in pertinent part, that, "[a]s is welLknown to defense counsel, and, of course, to this Court, Governor Andrew Cuomo issued a series of Executive Orders numbered 202 through 202 .72, which tolled an statutes of limitations and all other legal deadlines - includinglegal deadlines for service ofE~filed pleadings upon aprospective . . . defendant , --- in response to the Covid-19 ·Pandemic. Executive Order#202 tolled the aforesaid deadlines beginrting. in March 7, 202 0, and Exe cuti ve Ord~r §202. 72 did nqt lift the afor~sElid, toll until on~ week ago as of the dateofthisAffitmation,Novem.ber-3,·2020; Nowhere.in Otlfet1dant .PATHAK; s Affidavit ... does she dhipute actua:i receipt of personal service ofthe Supplemental .Swnmons and Amended Complaint upoil her !}t her home, ia service upon her husband, on July 6 [* 6] 66 of 12 FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 INDEX INDEX NO. NO. 610952/2019 610952/2019 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 6, 2020 - almost four ( 4) full months before the Governor lifted the state of statutes of limitations and other legal deadlines on November 3, 2020. The Only issue P ATHAKraises in ·her Motion with respect tq the validity of Plaintiffs' service of process upon her is her merely conclusory allegation, devoid of any substantiating facts, claiming she never received the second copy of the pleadings; which were mailed to her on July 8, 202Oby Plaintiffs' process server .... Defendant's simple denial ofreceipt of the second copy of pleadings mailed to her via U.S. Mail is insufficient to raise an issue of fact that Plaintiffs successfully established personal jurisdiction over Defendant PATHAK for purposes ofdefending the within lawsuit, ... Thus, in light of the fact thataU legal deadlines; including the deadline for Plaintiffs' ·service oftheir E-filed pleadings upon DefendantPATHAK, were stayed from·March7,2020 throughNovember·3, 2020, PATHAK' s Motion to Dismiss for late service ofprocess upon her pursuant to CPLR §306-b, must be denied in its entirety/' See Plaintiffs; Affirmation in Support of Cross-Motion (Seq. No. 04) and in Opposition to Motion(Seq. No. 03) Exhibit C. ln opposition to plaintiffs' cross~motion (Seq. No. 04) and 'in further support of defendant Dr. Pathak's motion (Seq. No. 03), her counsel submits, in pertinent part, tl!.at, "[t]he plaintiffs' conduct in this case· evinces a complete inability to comply with any. of the timetables set by the Court, orthose agreed upon amongst the parties even at the plaintiffs' behest and this has ulti1nately caused the Moving Defendant prejudice in its (sic) ability to timely defend this matter. First and foremost, the plaintiffs' recent Opposition papers, were due by November 4, 2020, ac9ording to the plaintiffs' own Stipulation to Adjourn the Motion dated October 9;2020. Plaiiltiff,(sic) instead f1led their opposition on Noverriber 11,. 2020, representing a seven (7} day delay .... ln light of thjs. late filing and lack ofJustification provided in the opposition papers, the (sic} Affii-mant respectfully subn1its. that the plaintiffs .(si¢) opposition papers should .not be 7 [* 7] 7 of 12 FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 INDEX INDEX NO. NO. 610952/2019 610952/2019 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 considered by this Court. Ifin the alternative, the Court agrees to consider the plaintiffs' opposition, the Moving Defendant provides the following justifications for why the motion to dismiss sllould be granted; Plaintiffs concede· that they did not serve the Moving Defendant by June 1, 2020 as directed by this Court in its:May 1, 2020 Order, ... This concession alone mandates the granting of clefendant's motion to dismiss. Instead, plaintiffs seek to shift the·bla:me to the Moving Defendant by stating that the Moving Defendant's 'bare and unsubstantiated deniaf ofreceipt of service in the Moving Defendant's Affidavit dated September 15, 202() were insufficient to rebut the presumption of good and proper service .... Regardless of fault, it does not change the undisputed fact that the Moving Defendant was not timely served and that When she was eventually served, service was deficient because a copy ofJudge Sher's Order of May 1, 2020 was not provided, and no follow-up mailing was completed, pursuanfto that Order. 'Nhile a process server's sworn affidavit of service. ordinarily constitutes prima facie evidence of proper service pursuant to CPLR § 308, where, as here, there is a sworn denial that delivery to the defendantwas accomplished; the affidavit of serVice is rebutted .... The Affidavit of the Moving Defendant dated :September I 5, 2020 contains a detailed and specific contradiction of the allegation in the process server's affidavit." See Defendant Dr. Pathak's Affirmation in Opposition to Cross-Motion (Seq, No. 04) and in Reply to Motion (Seq. No. 03) Exhibits A-C. Counsel for defendantDr. Pathak further asserts, in pertinent part, that, "[w]hile the undersigned is sympathetic to plaintiffs' ·counsel's hardship, this does not alter the fact that the plaintiffs failed to comply With the Court's May 11 2020 Decision. and Order which reqµired the plaintiffs to serve the Mov1ng Defendant v,;ith a copy of said CoU1j: Order. The argument that failure toefiect proper service shouid be excused because in this 'era ofZoom conferenqes and E-fileq documents', the: Moving Defendant's counsel registered .his email address and r¢cei ved 8 [* 8] 88 of 12 FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 INDEX INDEX NO. NO. 610952/2019 610952/2019 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 email service is inconsequential. This does not release the plaintiffs from their obligation to strictly comply with ~tatutorily mandated procedures. [citation omitted] .. ,, The factthat Moving Defendant's counsel could access email service is irrelevant to the question of this Court's jurisdiction over the Moving Defendant. Plaintiffs try to salvage their failure to serve the Moving Defendant by arguirtgthat Governor Andrew Cuomo' s Executive Orders 202 to 202.72 tolled all legal deadlines including service of E-fiJed pleadings uponaprospective defendant in response to the COVID-19 Pandemic . While it is acknowledged that at least initially, on March 22, 202(), the New York Chief Administrative Judge issued an order prohibiting all electronic and paper filings, the New York courts began re;,opening after this and by May 25, 202Oall restrictions on electronic filings had been lifted. This included Nassau County in which this case was filed,.,. Electronic filing was therefore re;,instituted before the plaintiffs were required to effect service on the Moving Defendant by June l,. 2020. Plaintiffs cannot on the one handrely·on the 'era of E-filed documents' to excuse the failure to attach a copy ofthe Court's Order to the Pleadings served on the Moving Defendant and on the other hand; ignore the use of e-filing during the pandemic, instead relying on Governor Cuomo's Executive tojustify a failure to effectuate timely service. Moreover, it is respectfully submitted that the purpose. of Governor Cuomo' s Executive Orders was not to excuse deficient servicein existing cases; The argument that the plaintiffs were not expected to timely serve the Moving Defendant with the copy of Justice Sher's May 1, 2020 Order, supplemental summons and amended complaint as required by the Court di.ie to Govei"nbr Cuomo'.S Executive Orders is irrelevant and cannot defeat the·instant· niotion.·Personaljurisdictiop_ is essential Here; clearly the Court does·not have personal jurisdiction overthe Moving Defendant due to the plaintiffs' faih.i.re to effectuate proper service.'' 9 [* 9] 99 of 12 INDEX INDEX NO. NO. 610952/2019 610952/2019 FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 See DefendantDr. Pathak's Affirmation inOpposition to Cross;.Motion (Seq. No. 04)and in Reply to Motion (Seq. No. 03) Exhibit D. The Court will first address plaintiffs' cross~rnotion {Seq. No, 04). The Comt acknowle<iges that Governor Cuomo'sExecutive Orders issued during the course of the Covid-19 pandemic tolled the time limits for service in legal actions. Accordingly, while the time frame for plaintiffs to serve the Supplemental Summons and Amended Complaint upon defendant Dr. Pathak was setforth irttheMay 1, 2020 Decision and Orderofthis Court;the Executive Order could be viewed to have tolled said deadline. With respect to the issue· as to· whether defendant Dr. Pathak was additionally served by· mail withthe Supplemental Summons and Amended Complaint, mere denials ofreceipt ate ·insufficient to rebut the presumption of proper service created lJy a properly-executed affidavit of service, See De La Barrera v .. HandleJ', 290.A.D.2d 476, 736 N.Y.S.2d249{2dDept. 2002); Udell v. Alcamo Supply & Contracting Corporation, 275 A.D.2d 453, 713 N.Y.S.2d 77 {2d Dept. 2000); 1\lforales v. Yaghoobian, 13 A.D.3d 424, 786 N.Y$.2d 562 (2d Dept. 2004). The process server's. affidavit established, prima facie; that defendant Dt. Pathak was properly served pursuant to personal service rules. Additionally,. the affirmation of service that additional copies ofthe Supplemeriull Summons and Amended Complaint had been mailed to defendant. Dr, Pathak raises a presumption that a proper mailing occurred and defendant Dr. Pathak's mere denial of receipt was not sufficient, by itself, to rebut the presumption. See Udell v. Alcamo Supply & Contracting Corpon.:ition, supra.; Cavalry Portfolio Services, LLC v. Rei~man; 55 A.D.3d 524; 865 N.Y.S.2d286.(2d Dept. 2008). 10 [* 10] 10 of 12 FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 INDEX INDEX NO. NO. 610952/2019 610952/2019 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/2021 Furthertnore, while the Court did in fact order that a copy ofits May I; 2020 Decision and Order be served with the S upplemerttal Sti:rrtmons and Amended Complaint,. plaintiffs' fa1l ure to do so does riot constitute the Court lacking jurisdiction over the person of defendant Dr. Pathak. Therefore, based upon the above, and in the Court's discretion, plaintiffs' cross-motion (Seq. No. 04), pursuant to CPLR§§ 2005 and 306(b), for an otdet excusing their failure to serve theSuppletnerttal Summons and Amended Complaint upon defendant Dt. Pathak on or before June I, 2020, on the gtourtdsthat Executive Ordersm.imbered202 through202.72 provided that all dea.dlines were stayed until November 3, 2020, and because plaintiffs' delay in serving defenpl:lllt Dr. Pathak was the result of excusable default and delay caused by COVID 19-related illnesses and hardships suffered by plaintiffs' counsel; and, pursuant tu CPLR §§ 2005 and J06(b), for an order excusing their failure to personally serve·a copy of the May 1., 2020 Order of the Honorable Denise L. Sher upon defendant Dr. Pathak together with the Supplemerttal Summons and Amended Complaint, mt the grounds thatsuchfailute was the resultof excusable default and delay caused by COVID 19-related illnesses and hardships·suffered by plaintiffs' counsel, is hereby GRANTED. And it is further ORDERED thatplaintiffs' Supplemental Summons, Amended Complaint,and a copy of the Court's May 1,. 2020 Order, are hereby deemed as having. been timely and properly served on defendant Dr. Pathak. Consequently, defendant Dr; Pathak'.s motion (Seq. No. 03)~ pursuantto. CPLR § 3211 (a)(8), for art otder dismissing plaintiffs' Amended Complaint as against her. on the g1·ourtds t.hat plaintiffs failed to acquire perstma:i jurisdiction over her; and, pursuant to CPLR § 3 06-b, J9r ah qrder di sni.issing the Amended Complaint with prejudice due to plaintiffs' failure 11 [* 11] 11 of 12 INDEX INDEX NO. NO. 610952/2019 610952/2019 FILED: NASSAU COUNTY CLERK 01/27/2021 01:06 PM NYSCEF DOC. DOC. NO. NO. 94 94 RECEIVED NYSCEF: NYSCEF: 01/26/2021 01/26/202~ to timely complete service of the Supplemental Summons and Amended Complaint on her, is hereby DENIED. AU parties shall appear for a Certification Conference in IAS Par(30, Nassau County Supreme Court, I 00 Supreme Court Drive, Mineola, New Yark, on April 13, 2021. This constitutes the Decision and Order ofthis Court. Dated: Mineola, New York January 25, 2021 ENTERED Jan 27 2021 NASSAU COUNTY COUNTY CLERK"S OFFICE 12. [* 12] 12 of 12 ----·········-······-········ · · · · · · · · · · · · · · · · · · · · - · · · · · · · · - · · - · · · · · · · · · · · - · · · · - - - - - - - - - - - - - - - - - - - - - -

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