| Silvering v Sunrise Family Med., P.C. |
| 2018 NY Slip Op 03556 [161 AD3d 1021] |
| May 16, 2018 |
| Appellate Division, Second Department |
[*1]
| Ashley Silvering, Formerly Known as Ashley Clarke, et al.,Appellants, v Sunrise Family Medical, P.C., Defendant, and Gina Guschel,Respondent. |
Cophen E. Sears III, Melville, NY, for appellants.
Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, NY(Susan Weihs Darlington of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Joseph Farneti, J.), dated July 12, 2016. The ordergranted the motion of the defendant Gina Guschel pursuant to CPLR 5015 (a) (4) to vacate anorder of the same court entered April 15, 2014, which granted leave to enter a default judgmentagainst her, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst her, and denied the plaintiffs' application pursuant to CPLR 306-b to extend their time toserve the defendant Gina Guschel with the summons and complaint.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asdenied the plaintiffs' application pursuant to CPLR 306-b to extend their time to serve thedefendant Gina Guschel with the summons and complaint is treated as an application for leave toappeal from that portion of the order, and leave to appeal from that portion of the order is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed, with costs.
On April 17, 2010, the plaintiff Ashley Silvering (hereinafter the plaintiff) allegedly wasinjured when she fell off an examination table at the premises of the defendant Sunrise FamilyMedical, P.C. (hereinafter Sunrise). On or about October 5, 2012, the plaintiff, and her husbandsuing derivatively, commenced this action, inter alia, to recover damages for medical malpracticeand negligence. Approximately three months later, the plaintiffs filed an affidavit stating that thedefendant Gina Guschel (hereinafter the defendant) was served with the summons and complaintpursuant to CPLR 308 (2) at the address of Sunrise, which was alleged to be her actual place ofbusiness. When the defendant failed to appear or answer, the Supreme Court, by order enteredApril 15, 2014, granted the plaintiffs' unopposed motion for leave to enter a default judgment onthe issue of liability against the defendant.
The defendant thereafter moved pursuant to CPLR 5015 (a) (4) to vacate the order [*2]entered April 15, 2014, and pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar as asserted against her for lack of personal jurisdiction. Theplaintiffs opposed the motion and made an application for an extension of time to serve thedefendant with the summons and complaint. The Supreme Court granted the motion and deniedthe application. The plaintiffs appeal.
The plaintiffs failed to establish that the defendant was served at her "actual place ofbusiness" pursuant to CPLR 308 (2). It is undisputed that the defendant was no longer employedby Sunrise at the time that the plaintiffs attempted to serve her (see 1136 Realty, LLC v 213 Union St.Realty Corp., 130 AD3d 590, 591 [2015]; Selmani v City of New York, 100 AD3d 861 [2012]; Simmonsv Boro Med., 270 AD2d 477, 479 [2000]). Further, there is no indication that the defendantengaged in any conduct which was designed to conceal the address of her actual place ofbusiness. Thus, the process server's alleged reliance on a representation made to him by anindividual at Sunrise that Sunrise was the defendant's actual place of business did not serve toestop the defendant from challenging service (see Dorfman v Leidner, 76 NY2d 956,957-958 [1990]; Feinstein v Bergner, 48 NY2d 234, 241-242 [1979]; ContinentalHosts v Levine, 170 AD2d 430 [1991]; Schurr v Fillebrown, 146 AD2d 623, 624[1989]). Accordingly, the plaintiffs' attempted service of the summons and complaint on thedefendant was defective as a matter of law (see Selmani v City of New York, 100 AD3dat 861; Munoz v Reyes, 40 AD3d1059 [2007]; Rios v Zorrilla, 8AD3d 463 [2004]).
To the extent the Supreme Court concluded that it lacked discretion to consider the plaintiffs'application pursuant to CPLR 306-b to extend their time to serve the defendant, which was notpresented in a proper cross motion pursuant to CPLR 2215, we disagree. Although "a partyseeking relief in connection with another party's motion is, as a general rule, required to do so byway of a cross motion," courts "retain discretion to entertain requests for affirmative relief that donot meet the requirements of CPLR 2215" (Fried v Jacob Holding, Inc., 110 AD3d 56, 64-65 [2013]; see Smulczeski v Smulczeski, 128AD3d 671, 672 [2015]).
Nonetheless, the plaintiffs would not have been entitled to the requested relief had they madea cross motion pursuant to CPLR 2215. Having failed to investigate whether the defendant stillworked at Sunrise, the plaintiffs failed to demonstrate that they exercised reasonable diligence inattempting to effect service. Thus, the plaintiffs were not entitled to an extension of time for"good cause" (CPLR 306-b; see Hobbinsv North Star Orthopedics, PLLC, 148 AD3d 784 [2017]; Kazimierski v New York Univ., 18AD3d 820 [2005]; see generally Leader v Maroney, Ponzini & Spencer, 97NY2d 95, 104-106 [2001]; Bumpus vNew York City Tr. Auth., 66 AD3d 26, 31 [2009]). Nor did the plaintiffs demonstratecircumstances warranting an extension of time "in the interest of justice" (CPLR 306-b). Theplaintiffs did not exercise diligence in serving the defendant, the defendant had no notice of theaction until over two years after expiration of the statute of limitations, and there was no showingof merit to the plaintiffs' causes of action (see Brown v Sanders, 142 AD3d 940, 941 [2016]; Wilbyfont v New York Presbyt. Hosp.,131 AD3d 605, 607 [2015]).
Accordingly, the order granting the defendant's motion and denying the plaintiffs' applicationmust be affirmed insofar as appealed from. Roman, J.P., Sgroi, Connolly and Christopher, JJ.,concur.