| Schroeder v Good Samaritan Hosp. |
| 2011 NY Slip Op 00500 [80 AD3d 744] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Ruth Schroeder, Appellant, v Good Samaritan Hospital etal., Respondents, et al., Defendants. |
—[*1] O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains, N.Y. (Montgomery L.Effinger of counsel), for respondent Good Samaritan Hospital. Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N. Romano of counsel), forrespondents Andrew Schechter and Lewis Bobroff. VoutÉ, Lohrfink, Magro & Collins, LLP, White Plains, N.Y. (Laura K. Silverstein andSarah R. Levin of counsel), for respondent "John" Bauman.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, aslimited by her brief, from (1) so much of an order of the Supreme Court, Rockland County(Weiner, J.), dated October 16, 2009, as granted the separate motions of the defendant GoodSamaritan Hospital, and the defendants Andrew Schechter and Lewis Bobroff pursuant to CPLR3211 (a) (5) and (8) to dismiss the amended complaint insofar as asserted against each of them,and the motion of the defendant "John" Bauman pursuant to CPLR 3211 (a) (5) to dismiss theamended complaint insofar as asserted against him, and (2) so much of an order of the samecourt dated March 24, 2010, as, upon reargument, adhered to the original determination grantingthe motion of the defendant "John" Bauman pursuant to CPLR 3211 (a) (5) to dismiss theamended complaint insofar as asserted against him.
Ordered that the appeal from so much of the order dated October 16, 2009, as granted themotion of the defendant "John" Bauman pursuant to CPLR 3211 (a) (5) to dismiss the amendedcomplaint insofar as asserted against him is dismissed, as that portion of the order wassuperseded by the order dated March 24, 2010, made upon reargument; and it is further,
Ordered that the order dated October 16, 2009, is reversed insofar as reviewed, and theseparate motions of the defendant Good Samaritan Hospital, and the defendants AndrewSchechter and Lewis Bobroff pursuant to CPLR 3211 (a) (5) and (8) to dismiss the amendedcomplaint insofar as asserted against each of them are denied; and it is further,
Ordered that the order dated March 24, 2010, is reversed insofar as appealed from, on thelaw, upon reargument, the determination in the order dated October 16, 2009, granting the [*2]motion of the defendant "John" Bauman pursuant to CPLR 3211 (a)(5) to dismiss the amended complaint insofar as asserted against him is vacated, and that motionis denied; and it is further,
Ordered that one bill of costs is awarded to the appellant, payable by the respondentsappearing separately and filing separate briefs.
On February 11, 2006, the plaintiff allegedly sustained personal injuries as a result of thedefendants' medical malpractice. The last day for the plaintiff to timely commence this actionwas on August 11, 2008. On that date, the plaintiff commenced this action against, among others,Good Samaritan Hospital (hereinafter Good Samaritan), Andrew Schechter, Lewis Bobroff, and"John" Bauman (hereinafter collectively the defendants) by filing a summons and complaint withthe Rockland County Clerk's Office. The plaintiff did not serve the original summons andcomplaint on the defendants. On September 30, 2008, without seeking leave of the court, theplaintiff filed an amended summons and complaint under the same index number as the originalpleadings. The amended complaint did not differ substantively from the original complaint.Within 120 days from the date she filed the original pleadings, the plaintiff served the amendedsummons and complaint upon the defendants, but not the original summons and complaint.
The defendant Good Samaritan, and the defendants Schechter and Bobroff (hereinaftercollectively the Good Samaritan defendants) separately moved pursuant to CPLR 3211 (a) (5)and (8) to dismiss the amended complaint insofar as asserted against each of them on statute oflimitations and personal jurisdiction grounds. Bauman separately moved pursuant to CPLR 3211(a) (5) to dismiss the amended complaint insofar as asserted against him on statute of limitationsgrounds. In their respective motions, the Good Samaritan defendants argued that the court lackedpersonal jurisdiction over them because the plaintiff never served them with the timely filedoriginal summons and complaint pursuant to CPLR 306-b. The Good Samaritan defendants andBauman also contended that the action was untimely commenced pursuant to the applicablestatute of limitations, since the amended summons and complaint were filed on September 30,2008. In response, the plaintiff asserted that she amended the pleadings as of right pursuant toCPLR 3025 (a), and that the amended pleadings replaced the original pleadings. In an order datedOctober 16, 2009, the Supreme Court, inter alia, granted the motions to dismiss, finding that theplaintiff's service of the amended summons and complaint, rather than the originally filedsummons and complaint, was jurisdictionally defective.
The plaintiff moved for leave to renew and reargue her opposition to the defendants' priormotions to dismiss. In an order dated March 24, 2010, the Supreme Court, inter alia, granted thatbranch of the plaintiff's motion which was for leave to reargue Bauman's motion, and, uponreargument, adhered to its original determination. The plaintiff appealed from so much of theorder dated October 16, 2009, as granted the motions to dismiss, and from so much of the orderdated March 24, 2010, as, upon reargument, adhered to the original determination.
Where, as here, a summons and complaint are timely filed but not served, service of asubstantively similar amended summons and complaint without leave of court under the sameindex number is proper when it is served "before the period for responding to the originalcomplaint has expired" (see O'Keefe vBaiettie, 72 AD3d 916, 917 [2010], citing CPLR 3025 [a]). Thus, the Supreme Courtobtained personal jurisdiction over the defendants because they were served with substantivelysimilar amended pleadings during the 120-day period when service of the original pleadings wasrequired under CPLR 306-b (seeO'Keefe v Baiettie, 72 AD3d 916 [2010]). Moreover, under the circumstances, theaction was timely commenced as against the defendants. Dillon, J.P., Balkin, Leventhal andChambers, JJ., concur. [Prior Case History: 26 Misc 3d 427.]