| Wilbyfont v New York Presbyt. Hosp. |
| 2015 NY Slip Op 06585 [131 AD3d 605] |
| August 19, 2015 |
| Appellate Division, Second Department |
[*1]
| Sharon Wilbyfont, Respondent, v New YorkPresbyterian Hospital et al., Defendants, and Srinivas Kesanakurthy,Appellant. |
Fager, Amsler & Keller, LLP, East Meadow, N.Y. (William P. Hassett ofcounsel), for appellant.
G. Wesley Simpson, P.C., Brooklyn, N.Y., for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantSrinivas Kesanakurthy appeals from an order of the Supreme Court, Kings County(Dabiri, J.), dated May 30, 2014, which denied his cross motion pursuant to CPLR 3211(a) (8) to dismiss the complaint insofar as asserted against him and granted that branch ofthe plaintiff's motion which was pursuant to CPLR 306-b for leave to extend the timewithin which to serve the summons and complaint upon him.
Ordered that the order is reversed, on the law, on the facts, and in the exercise ofdiscretion, with costs, that branch of the plaintiff's motion which was pursuant to CPLR306-b for leave to extend the time within which to serve the summons and complaintupon the defendant Srinivas Kesanakurthy is denied, and the matter is remitted to theSupreme Court, Kings County, for a hearing on the issue of whether the defendantSrinivas Kesanakurthy was properly served with process and thereafter a newdetermination of the cross motion of that defendant to dismiss the complaint insofar asasserted against him for lack of personal jurisdiction.
In support of his cross motion pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against him on the ground of lack of personal jurisdiction,the submissions of the defendant Srinivas Kesanakurthy (hereinafter the appellant) raisedquestions of fact as to whether he was properly served at his actual place of businessunder CPLR 308 (2) and questions of fact regarding the veracity of the process server'saffidavit (see Samuel vBrooklyn Hosp. Ctr., 88 AD3d 979, 980 [2011]; Washington Mut. Bank v Holt,71 AD3d 670, 671 [2010]; Kearney v Neurosurgeons of N.Y., 31 AD3d 390,391 [2006]; West v Doctor's Hosp., 198 AD2d 92 [1993]). Accordingly, ahearing is required to determine, by a preponderance of the evidence, if the appellant wasvalidly served with process pursuant to CPLR 308 (2), and we remit the matter to theSupreme Court, Kings County, for such a hearing and thereafter a new determination ofthe appellant's cross motion pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against him on the ground of lack of personal jurisdiction (see Rosario v NES Med. Servs. ofN.Y., P.C., 105 AD3d 831, 833 [2013]).
If, upon remittal, the Supreme Court determines that the appellant was not properlyserved—an issue on which we take no position—then the issue of whetherthe plaintiff should be [*2]granted leave to extend thetime within which to serve the summons and complaint will become relevant. On thisappeal, the appellant contends that the Supreme Court should have denied that branch ofthe plaintiff's motion which was pursuant to CPLR 306-b for leave to extend the timewithin which to serve the summons and complaint upon him. In her brief, the plaintiffcounters that that branch of her motion was properly granted. We agree with theappellant. A motion pursuant to CPLR 306-b for leave to extend the time for service of asummons and complaint may be granted upon "good cause shown or in the interest ofjustice" (CPLR 306-b; see Leader v Maroney, Ponzini & Spencer, 97 NY2d95, 104-105 [2001]). The affidavits submitted by the plaintiff in support of her motionfailed to establish that she exercised reasonably diligent efforts in attempting to effectproper service of process upon the appellant and, thus, she failed to show "good cause"(CPLR 306-b; see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104;Moundrakis v Dellis, 96AD3d 1026, 1027 [2012]; Bumpus v New York City Tr. Auth., 66 AD3d 26, 32[2009]; Kazimierski v NewYork Univ., 18 AD3d 820 [2005]). The plaintiff also failed to establish herentitlement to an extension of time for service of the summons and complaint in theinterest of justice, since she failed to demonstrate a potentially meritorious medicalmalpractice cause of action against the appellant and failed to rebut the appellant'sassertion that he did not have notice of the action until nearly 11 months after theexpiration of the statute of limitations, and the concomitant inference that he wassubstantially prejudiced by the plaintiff's lengthy delay in seeking leave to extend hertime to serve the summons and complaint (see Redman v South Is. Orthopaedic Group, P.C., 78 AD3d1147, 1148 [2010]; Henig v Good Samaritan Med. Ctr., 301 AD2d 571[2003]; Leadbeater v Beaubrun, 299 AD2d 458, 459 [2002]). Accordingly, theSupreme Court should have denied that branch of the plaintiff's motion which waspursuant to CPLR 306-b for leave to extend the time within which to serve the summonsand complaint upon the appellant. Balkin, J.P., Austin, Duffy and Barros, JJ.,concur.