| Furze v Stapen |
| 2018 NY Slip Op 03338 [161 AD3d 827] |
| May 9, 2018 |
| Appellate Division, Second Department |
[*1]
| Mishelle Furze, Respondent, v Richard Stapen, M.D.,et al., Defendants, and Sandhya Nayak, M.D., Appellant. |
Bartlett, McDonough & Monaghan, LLP, Mineola, NY (Robert Devine of counsel), forappellant.
Ross Legan Rosenberg Zelen & Flaks, LLP, New York, NY (Clifford F. Zelen ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendant SandhyaNayak appeals from an order of the Supreme Court, Kings County (Laura L. Jacobson, J.), datedSeptember 15, 2016. The order, insofar as appealed from, granted the plaintiff's cross motionpursuant to CPLR 306-b to extend the time to serve the summons and complaint upon thedefendant Sandhya Nayak.
Ordered that the order is affirmed insofar as appealed from, with costs.
On March 25, 2015, the plaintiff filed a summons and complaint against, among others, thedefendants First Medcare, Inc. (hereinafter First Medcare), Jorge R. Orellana, and SandhyaNayak, to recover damages for medical malpractice, negligent hiring and supervision, and lack ofinformed consent. An affidavit of service evidencing that Nayak was served pursuant to CPLR308 (2) at her usual place of abode was filed with the Kings County clerk on April 16, 2015. Anadditional copy of the summons and complaint was sent via certified mail to Nayak at the addressof First Medcare, and the return receipt therefor was signed on or about June 22, 2015. WhenNayak failed to appear or answer the complaint, the plaintiff informed First Medcare andOrellana, both of whom had answered, of Nayak's default and requested that they notify Nayak'sinsurance carrier of this action. Thereafter, Nayak served an answer dated August 20, 2015, and,by motion dated October 13, 2015, moved pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against her for lack of jurisdiction. By papers dated November 2,2015, the plaintiff cross-moved pursuant to CPLR 306-b to extend the time to serve Nayak. TheSupreme Court determined, after a hearing to determine the validity of service, that service ofprocess was defective and, inter alia, granted the plaintiff's cross motion to extend the time toserve Nayak. Nayak appeals.
Pursuant to CPLR 306-b, service of process was to be effected upon Nayak within 120 daysof filing of the summons and complaint, which period expired on July 23, 2015. It is undisputedthat the alleged medical malpractice occurred on January 23, 2013. Thus, the applicable2
The plaintiff's cross motion pursuant to CPLR 306-b to extend the time to serve [*2]Nayak with the summons and complaint was properly granted in theinterest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106[2001]). When deciding whether to grant an extension of time to serve a summons and complaintin the interest of justice, "the court may consider diligence, or lack thereof, along with any otherrelevant factor in making its determination, including expiration of the Statute of Limitations, the[potentially] meritorious nature of the cause of action, the length of delay in service, thepromptness of a plaintiff's request for the extension of time, and prejudice to defendant"(id. at 105-106; see Bumpus vNew York City Tr. Auth., 66 AD3d 26, 31-32 [2009]). Here, the record established thatthe plaintiff exercised diligence in timely filing, and in attempting to serve Nayak and notifyNayak and her insurance carrier of the summons and complaint within the 120-day periodfollowing the filing of the summons and complaint, although the attempt to serve Nayak wasultimately deemed defective (seeThompson v City of New York, 89 AD3d 1011, 1012 [2011]). While the action wastimely commenced, the statute of limitations had expired when the plaintiff cross-moved forrelief, the plaintiff promptly cross-moved for an extension of time to serve Nayak, and there wasno identifiable prejudice to Nayak attributable to the delay in service (see Castillo v JFK Medport, Inc., 116AD3d 899 [2014]; Selmani v Cityof New York, 100 AD3d 861, 862 [2012]; Thompson v City of New York, 89AD3d at 1012; DiBuono v Abbey,LLC, 71 AD3d 720 [2010]; Scarabaggio v Olympia & York Estates Co.,278 AD2d 476 [2000], affd 97 NY2d 95 [2001]). Roman, J.P., LaSalle, Connolly andChristopher, JJ., concur.