| Castillo v JFK Medport, Inc. |
| 2014 NY Slip Op 02738 [116 AD3d 899] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Jovanny Castillo, Respondent, v JFK Medport,Inc., et al., Appellants. |
—[*1] Martin Kanfer, Great Neck, N.Y. (Jennifer Shafer of counsel), forrespondent.
In an action to recover damages for medical malpractice and lack of informedconsent, the defendants appeal from an order of the Supreme Court, Queens County(O'Donoghue, J.), entered October 3, 2013, which denied their motion pursuant to CPLR3211 (a) (5) and (8) to dismiss the complaint, inter alia, for lack of personal jurisdictionand granted the plaintiff's cross motion pursuant to CPLR 306-b to extend the time toserve them with copies of the summons and complaint.
Ordered that the order is affirmed, with costs.
The plaintiff failed to establish that the defendants were properly served by mailpursuant to CPLR 312-a, since he failed to present any evidence that theacknowledgments of receipt in the form set forth in CPLR 312-a (d) were completed andmailed or delivered to his attorney (see CPLR 312-a [b]; Klein v Educational LoanServicing, LLC, 71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. vHuch, 50 AD3d 963, 964 [2008]). Furthermore, the plaintiff failed to establishthat the defendants affirmatively waived an objection to personal jurisdiction eitherorally or by the letters of the defendants' insurer mailed to the plaintiff's attorney beforethe defendants' time to answer had expired, setting forth the liability coverage providedto the defendants (see Pendergrast v St. Mary's Hosp., 156 AD2d 436, 437[1989]). The defendants were not obligated to challenge the defective service at thattime, but were free to thereafter raise their objection to personal jurisdiction by a motionto dismiss pursuant to CPLR 3211 (a) (8) or by setting it forth as a defense in theiranswer as provided for in CPLR 3211 (see CPLR 320 [b]; 3211 [e]; Frederic v Israel, 104 AD3d909, 910 [2013]; Pendergrast v St. Mary's Hosp., 156 AD2d at 437-438;Colbert v International Sec. Bur., 79 AD2d 448, 461 [1981]). Since thedefendants moved to dismiss in accordance with CPLR 3211, any alleged informalappearance by the defendants did not constitute a waiver of the jurisdictional objection.
The Supreme Court, however, providently exercised its discretion in granting theplaintiff's cross motion pursuant to CPLR 306-b for leave to extend the time to serve thedefendants with copies of the summons and complaint in the interest of justice (seeLeader v Maroney, Ponzini[*2]& Spencer, 97 NY2d95, 105-106 [2001]). While the action was timely commenced, the statute of limitationshad expired when the plaintiff cross-moved for relief, the timely service of process wassubsequently found to have been defective, and the defendants had actual notice of theaction within 120 days of its commencement (see Selmani v City of New York, 100 AD3d 861, 862[2012]; Thompson v City ofNew York, 89 AD3d 1011, 1012 [2011]; Chiaro v D'Angelo, 7 AD3d 746 [2004]). Furthermore, theplaintiff promptly cross-moved for an extension of time to serve the defendants, andthere was no identifiable prejudice to the defendants attributable to the delay in service(see Thompson v City of New York, 89 AD3d at 1012; DiBuono v Abbey, LLC, 71AD3d 720 [2010]).
Accordingly, the defendants' motion to dismiss the complaint was properly deniedand the plaintiff's cross motion for leave to extend the time to serve the defendants withcopies of the summons and complaint was properly granted. Balkin, J.P., Lott, Romanand Miller, JJ., concur.