| Estate of Fernandez v Wyckoff Hgts. Med. Ctr. |
| 2018 NY Slip Op 04306 [162 AD3d 742] |
| June 13, 2018 |
| Appellate Division, Second Department |
[*1]
| Estate of Jerry Fernandez, Deceased, by Carol Salsbury,Executrix, Respondent, v Wyckoff Heights Medical Center et al., Defendants, and SamiiMohsen, M.D., Appellant. |
Kaufman Borgeest & Ryan LLP, Valhalla, NY (Jacqueline Mandell and Rebecca A.Barrett of counsel), for appellant.
Abbott Bushlow & Schechner, LLP, Ridgewood, NY (Bruce E. Bushlow and MatthewA. Kaplan of counsel), for respondent.
In an action to recover damages for medical malpractice and wrongful death, the defendantSamii Mohsen appeals from an order of the Supreme Court, Kings County (Gloria Dabiri, J.),dated January 29, 2016. The order denied the motion of the defendant Samii Mohsen to dismissthe complaint insofar as asserted against him for lack of personal jurisdiction, and granted theplaintiff's cross motion for an extension of time to serve the summons and complaint upon SamiiMohsen.
Ordered that the order is affirmed, with costs.
The plaintiff's decedent received treatment at Wyckoff Heights Medical Center (hereinafterWyckoff) from March 10, 2013, through March 14, 2013, and he died on June 14, 2014. It isalleged that on March 11, 2013, while the decedent was at Wyckoff, the defendant Samii Mohsen(hereinafter the appellant), a physician who worked in the Department of Medical Imaging, failedto properly interpret X rays, CT scans, and ultrasound tests of the decedent's kidney. On July 21,2015, the plaintiff commenced this action to recover damages for medical malpractice andwrongful death. According to an affidavit of service, the appellant was served at Wyckoff onAugust 5, 2015, despite the fact that he had retired from his position at Wyckoff on January 30,2015. The appellant answered the complaint and raised lack of personal jurisdiction as anaffirmative defense.
On November 23, 2015, the appellant moved pursuant to CPLR 3211 (a) (8) and 306-b todismiss the complaint insofar as asserted against him for lack of personal jurisdiction. Theplaintiff cross-moved pursuant to CPLR 306-b for an extension of time to serve the summonsand complaint upon the appellant. The Supreme Court denied the appellant's motion and grantedthe plaintiff's cross motion, and this appeal ensued.
"An extension of time for service is a matter within the court's discretion" (Leader vMaroney, Ponzini & Spencer, 97 NY2d 95, 101 [2001]). Such a motion may be grantedupon "good cause [*2]shown or in the interest of justice" (CPLR306-b; see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104-105)." 'Good cause' and 'interest of justice' are two separate and independent statutorystandards" (Bumpus v New York CityTr. Auth., 66 AD3d 26, 31 [2009]).
Contrary to the plaintiff's contention, an attempt at service that later proves defective cannotbe the basis for a "good cause" extension of time to serve process pursuant to CPLR 306-b (see Hobbins v North Star Orthopedics,PLLC, 148 AD3d 784, 787-788 [2017]; Wilbyfont v New York Presbyt. Hosp., 131 AD3d 605, 607[2015]). However, the more flexible "interest of justice" standard accommodates late service thatmight be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant(Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). Indeed, the court mayconsider diligence or lack thereof, along with any other relevant factor, in making itsdetermination, including expiration of the statute of limitations, the potentially meritorious natureof the cause of action, the length of delay in service, the promptness of a plaintiff's request for theextension of time, and prejudice to defendant (see id. at 105-106; Chan v Zoubarev, 157 AD3d 851[2018]; Umana v Sofola, 149 AD3d1138, 1138-1140 [2017]; Moundrakis v Dellis, 96 AD3d 1026, 1027 [2012]; Thompson v City of New York, 89AD3d 1011, 1012 [2011]).
Here, several factors weighed in favor of granting the plaintiff's cross motion. The action wastimely commenced, and the statute of limitations with respect to one of the two causes of actionhad expired when the plaintiff cross-moved for relief (see Chan v Zoubarev, 157 AD3d 851 [2018]; Selmani v City of New York, 100AD3d 861, 862 [2012]; Thompson v City of New York, 89 AD3d at 1012; Chiaro v D'Angelo, 7 AD3d 746[2004]). The appellant also had actual notice of this action within 120 days after itscommencement (see Chan vZoubarev, 157 AD3d 851 [2018]; Castillo v JFK Medport, Inc., 116 AD3d 899 [2014]; Selmani vCity of New York, 100 AD3d at 862; Thompson v City of New York, 89 AD3d at1012). Furthermore, an extension of time to serve the summons and complaint under CPLR306-b in the interest of justice is available where, as here, "service is timely made within the120-day period but is subsequently found to have been defective" (Earle v Valente, 302AD2d 353, 354 [2003]; see Chan vZoubarev, 157 AD3d 851 [2018]; Citron v Schlossberg, 282 AD2d 642 [2001]).Finally, we note that whether a plaintiff has demonstrated that he or she has a potentiallymeritorious cause of action is but one factor to be considered by a court in determining a CPLR306-b motion (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at105-106).
Accordingly, the Supreme Court providently exercised its discretion in denying theappellant's motion and in granting, in the interest of justice, the plaintiff's cross motion to extendthe time to serve the summons and complaint upon the appellant (see CPLR 306-b;Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). Chambers, J.P.,Cohen, Maltese and Barros, JJ., concur.