| Hobbins v North Star Orthopedics, PLLC |
| 2017 NY Slip Op 01679 [148 AD3d 784] |
| March 8, 2017 |
| Appellate Division, Second Department |
[*1]
| Verna Hobbins, Respondent-Appellant, v North StarOrthopedics, PLLC, et al., Defendants, and Paul Ackerman, M.D.,Appellant-Respondent. |
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone, NancyLiu, and Sofya Uvaydov of counsel), for appellant-respondent.
G. Wesley Simpson, P.C., Brooklyn, NY, for respondent-appellant.
In an action, inter alia, to recover damages for medical malpractice, the defendant PaulAckerman appeals, as limited by his brief, from so much of an order of the Supreme Court,Kings County (Sweeney, J.), dated January 21, 2015, as, in effect, denied his motion pursuant toCPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him and granted theplaintiff's motion pursuant to CPLR 306-b for an extension of time to serve the summons andcomplaint upon him, and the plaintiff cross-appeals, as limited by her brief, from so much of thesame order as (1) granted the separate motion of the defendant Paul Ackerman to vacate so muchof an order of the same court dated August 14, 2013, as marked off the calendar his motion todismiss the complaint insofar as asserted against him, and thereupon to restore his motion to thecalendar, (2) granted that branch of the separate motion of the defendant Paul Ackerman whichwas to confirm a referee's report (Archer, Ct. Atty. Ref.) dated December 23, 2013, determiningthat service upon him was defective, and (3), in effect, upon reargument, adhered to adetermination in an order of the same court dated May 28, 2012, denying that branch of her priormotion which was for leave to enter a default judgment against the defendant Paul Ackerman,and denied, as academic, that branch of her motion which was for leave to renew her priormotion for leave to enter a default judgment against that defendant given that the service on himwas determined to be defective.
Ordered that the order is modified, on the facts and in the exercise of discretion, (1) bydeleting the provision thereof, in effect, denying the motion of the defendant Paul Ackermanpursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him, andsubstituting therefor a provision granting that motion, and (2) by deleting the provision thereofgranting the plaintiff's motion pursuant to CPLR 306-b for an extension of time to serve thesummons and complaint upon the defendant Paul Ackerman, and substituting therefor aprovision denying that motion; as so modified, the order is affirmed insofar as appealed andcross-appealed from, with costs to the defendant Paul Ackerman.
On February 7, 2011, the plaintiff commenced this action to recover damages for medicalmalpractice. The plaintiff purportedly served the defendant Paul Ackerman (hereinafter thedefendant) at his actual place of business pursuant to CPLR 308 (2) in February 2011, and again[*2]in June 2011. When the defendant failed to answer or appearin this action, the plaintiff moved, in January 2012, inter alia, for leave to enter a defaultjudgment against the defendant. In an order dated May 28, 2012, the Supreme Court denied theplaintiff's motion without prejudice to renew. After the plaintiff moved, inter alia, for leave torenew and reargue her motion by notice dated June 28, 2012, the defendant appeared and movedto dismiss the complaint pursuant to CPLR 3211 (a) (8) insofar as asserted against him for lackof personal jurisdiction. Thereafter, the plaintiff moved pursuant to CPLR 306-b for an extensionof time to serve the defendant. The court directed a special referee to hear and report on thevalidity of service of process, and that hearing was held in May 2013. On August 14, 2013, thedefendant failed to appear at a court proceeding for his motion to dismiss, and, on the same date,the court, inter alia, marked the defendant's motion off the calendar. In November 2013, thedefendant moved to vacate so much of the August 14, 2013, order as marked off the calendar hismotion to dismiss, and thereupon to restore his motion to the calendar. After the special refereeissued a report dated December 23, 2013, finding service on the defendant to be defective, thedefendant moved to confirm the referee's report.
In the order appealed from, the Supreme Court, inter alia, (1), in effect, upon reargument,adhered to the determination made in the order dated May 28, 2012, denying that branch of theplaintiff's prior motion which was for leave to enter a default judgment against the defendant, anddenied, as academic, that branch of the plaintiff's motion which was for leave to renew her priormotion for leave to enter a default judgment against the defendant given that service on him wasdetermined to be defective, (2) granted the defendant's motion to vacate so much of the orderdated August 14, 2013, as marked off the calendar his motion to dismiss the complaint pursuantto CPLR 3211 (a) (8) insofar as asserted against him, and thereupon to restore his motion to thecalendar, (3) granted that branch of the defendant's separate motion which was to confirm thereferee's report determining that service upon him was defective, (4), in effect, denied thedefendant's motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst him, and (5) granted the plaintiff's motion pursuant to CPLR 306-b for an extension oftime to serve the defendant.
Contrary to the plaintiff's contention, the defendant's affidavit submitted in support of hismotion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against himwas sufficient to rebut the allegations contained in the affidavit of the plaintiff's process serverand raised questions of fact as to whether the defendant was properly served pursuant to CPLR308 (2) (see Teitelbaum v NorthShore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006, 1007 [2014]; Miterko v Peaslee, 80 AD3d 736,737 [2011]; McIntyre v Emanuel Churchof God In Christ, Inc., 37 AD3d 562, 562 [2007]; Bankers Trust Co. of Cal. vTsoukas, 303 AD2d 343, 344 [2003]).
The Supreme Court properly granted the defendant's motion to confirm the referee's reportdetermining that service upon the defendant was defective. "The plaintiff bears the ultimateburden of proving by a preponderance of the evidence that jurisdiction over the defendant wasobtained by proper service of process" (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d343, 343 [2003]; see HSBC Bank USA,N.A. v Hamilton, 116 AD3d 663, 664 [2014]). The referee's findings were supported bythe record, and the referee did not err in giving the defendant's testimony more credence than thatof the process server, who lacked credibility based on, inter alia, the fact that his records did notcomply with the provisions of General Business Law § 89-cc and the Rules of Cityof New York Department of Consumer Affairs (see 6 RCNY 2-233; Matter of Barr vDepartment of Consumer Affairs of City of N.Y., 70 NY2d 821, 823 [1987]; Jhang v Nassau Univ. Med. Ctr., 140AD3d 1018, 1019 [2016]; Billings v Southside Hosp., 122 AD2d 101, 101 [1986];Feeney v Booth Mem. Med. Ctr., 109 AD2d 865, 865 [1985]).
Furthermore, the Supreme Court providently exercised its discretion in granting thedefendant's motion to vacate so much of the prior order dated August 14, 2013, as marked off thecalendar, upon his failure to appear at the court, his motion to dismiss, and thereupon to restorethe motion to the calendar. The defendant demonstrated a reasonable and substantiated excusefor his attorney's failure to appear for oral argument on the motion's return date, he movedexpeditiously to vacate the default, and there was no evidence that the default was willful or thatthe plaintiff was prejudiced by the delay (see Nunez v Olympic Fence & Railing Co., Inc., 138 AD3d807, 808 [2016]; [*3]Kramarenko v New York Community Hosp., 134 AD3d770, 772 [2015]; Montefiore Med.Ctr. v Hartford Acc. & Indem. Co., 37 AD3d 673, 673 [2007]; Liotti v Peace, 15 AD3d 452, 453[2005]). In addition, the defendant demonstrated a potentially meritorious position on his motionto dismiss the complaint insofar as asserted against him for lack of personal jurisdiction (seeMontefiore Med. Ctr. v Hartford Acc. & Indem. Co., 37 AD3d at 674; Liotti vPeace, 15 AD3d at 453).
The Supreme Court improvidently exercised its discretion in granting the plaintiff's motionpursuant to CPLR 306-b for leave to extend the time within which to serve the summons andcomplaint upon the defendant. A motion pursuant to CPLR 306-b for leave to extend the time forservice of a summons and complaint may be granted upon "good cause shown or in the interestof justice" (CPLR 306-b; see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95,104-105 [2001]). The plaintiff failed to establish that she exercised reasonably diligent efforts inattempting to effect proper service of process upon the defendant and, thus, she failed to show"good cause" (CPLR 306-b; Wilbyfont vNew York Presbyt. Hosp., 131 AD3d 605, 607 [2015]; Moundrakis v Dellis, 96 AD3d1026, 1027 [2012]; Bumpus v NewYork City Tr. Auth., 66 AD3d 26, 32 [2009]; Kazimierski v New York Univ., 18 AD3d 820, 820 [2005]). Theplaintiff also failed to establish her entitlement to an extension of time for service of thesummons and complaint in the interest of justice (see Wilbyfont v New York Presbyt.Hosp., 131 AD3d at 607; Redman vSouth Is. Orthopaedic Group, P.C., 78 AD3d 1147, 1148 [2010]; Baione v Central Suffolk Hosp., 14AD3d 635, 636-637 [2005]; Ault v Richman, 299 AD2d 613, 614-615 [2002]).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court should have granted the defendant's motion pursuant toCPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack of personaljurisdiction, and should have denied the plaintiff's motion pursuant to CPLR 306-b for anextension of time to serve the defendant. Hall, J.P., Sgroi, Maltese and Duffy, JJ., concur.