Opinion
18660/2005.
Decided April 30, 2007.
For Plaintiff Peter E. Tangredi Esq. 202 Mamaroneck Avenue, White Plains, NY 10601.
For Malone Jennifer S. Dany Martin Clearwater Bell LLP, New York, NY 10017.
I. BACKGROUND
Plaintiff, on her and her deceased daughter's behalf, sues defendants for medical malpractice and the daughter's wrongful death. Defendant Malone moves to dismiss the complaint against him due to plaintiff's failure to serve him within 120 days after filing the complaint August 1, 2005, C.P.L.R. §§ 306(b), 306-b, or within the extension until September 5, 2006, granted by Justice Renwick January 3, 2006. Ultimately having served defendant Malone October 4, 2006, plaintiff cross-moves to extend her time to serve him until October 4, 2006. C.P.L.R. §§ 306-b, 2004. For the reasons explained below, the court grants defendant Malone's motion, dismisses the complaint against this defendant, C.P.L.R. § 306(b), 306-b, and denies plaintiff's cross-motion for a further extension of time to serve him. C.P.L.R. §§ 306-b, 2004.
II. THE DELAY IN SERVING DEFENDANT MALONE
When plaintiff commenced this action, and until she served defendant Malone, he was in Ireland. Plaintiff delayed over three months, until November 15, 2005, to transmit her complaint to the Central Authority in Ireland for service on Dr. Malone. Since Justice Renwick on January 3, 2006, granted plaintiff an extension until September 5, 2006, however, the court now must focus on that period in determining the current motions.
Plaintiff claims simply that once she forwarded her complaint to the Ireland Central Authority, she could do nothing further to assure it served Dr. Malone by September 5, 2006. According to the documents plaintiff relies on, Patricia Barron, Director of International Service for the interjurisdictional process service firm plaintiff employed, attested that the Central Authority was not obligated to keep plaintiff apprised of its service efforts.
Nonetheless, Ms. Barron repeatedly offered to be "of any other assistance pending receipt of the original certificate of service." Aff. of Peter E. Tangredi, Ex. B at 1. Despite this unlimited offer, plaintiff does not indicate anyone on her behalf contacted either the Central Authority or the firm involved with the service, to notify anyone of the deadline September 5, 2006. On August 14, 2006, when Ms. Barron notified plaintiff's attorney that the service firm had "no status available," and as the deadline approached, came, and went, no one on plaintiff's behalf followed up with the service, until October 25, 2006, 50 days after the deadline. Id. Nor did plaintiff, if she could not verify service, ever request any further extension, either before the deadline or afterward, until defendant Malone, predictably, moved to dismiss the action against him.
III. STANDARDS FOR A FURTHER EXTENSION OF TIME TO SERVE DEFENDANT
For plaintiff to extend her time to serve Dr. Malone from the deadline Justice Renwick ordered, September 5, 2006, until plaintiff served him October 4, 2006, she must show that good cause or the interests of justice dictate the extension. C.P.L.R. § 306-b; Leader v. Maroney, Ponzini Spencer, 97 NY2d 95, 101 (2001); Lippett v. Education Alliance, 14 AD3d 430, 431 (1st Dep't 2005); De Vries v. Metropolitan Transit Authority, 11 AD3d 312, 313 (1st Dep't 2004); Riccio v. Ghulam, 29 AD3d 558, 560 (2nd Dep't 2006). Good cause focusses on plaintiff's diligence in attempting to serve defendant and reasons for not effecting service despite that diligence. Plaintiff's diligence bears on the interests of justice, but this standard also encompasses all other circumstances bearing on the determination. Leader v. Maroney, Ponzini Spencer, 97 NY2d at 101; Lippett v. Education Alliance, 14 AD3d at 431; De Vries v. Metropolitan Transit Authority, 11 AD3d at 313; Mead v. Singleman, 24 AD3d 1142, 1145 (3rd Dep't 2005).
Plaintiff's daughter died August 29, 2003, but plaintiff claims defendants' medical malpractice in treating plaintiff herself continued until November 2003. In any event, the statutes of limitations expired for all plaintiff's claims, on her and her daughter's behalf, for medical malpractice, C.P.L.R. § 214-a; LaBarbera v. New York Eye and Ear Infirmary, 91 NY2d 207, 210 (1998); Levinson v. Health S. Manhattan, 17 AD3d 247 (1st Dep't 2005); Prinz-Schwartz v. Levitan, 17 AD3d 175, 177 (1st Dep't 2005); Rudolph v. Lynn, 16 AD3d 261, 262 (1st Dep't 2005), and wrongful death, NY Est. Powers Trusts Law § 5-4.1(1); Baez v. New York City Health Hosps. Corp., 80 NY2d 571, 576 (1992); Ortiz v. Hertz Corp., 212 AD2d 374, 375 (1st Dep't 1995); Greene v. Abbott Labs., 148 AD2d 403, 404 (1st Dep't 1989), before plaintiff served Dr. Malone. Slate v. Schiavone Constr. Co., 4 NY3d 816, 817 (2005); Posada Pelaez, 37 AD3d 168 (1st Dep't 2007); Yardeni v. Manhattan Eye, Ear Throat Hosp., 9 AD3d 296, 297-98 (1st Dep't 2004); Liaros v. City of New York, 14 AD3d 662, 663 (2nd Dep't 2005). The statutes of limitations for the medical malpractice claims on both plaintiff's and her daughter's behalf had not yet expired when Justice Renwick granted the first extension of time for service. The expiration of the statutes of limitations for all claims, now long ago, combined with any lack of diligence by plaintiff in attempting to serve Dr. Malone, however, would militate against a further extension. Slate v. Schiavone Constr. Co., 4 NY3d at 817; Posada Pelaez, 37 AD3d 168; Lippett v. Education Alliance, 14 AD3d at 431; De Vries v. Metropolitan Transit Authority, 11 AD3d at 313; Ludemann v. Maisel, 292 AD2d 428, 429 (2nd Dep't 2002).
Any lack of merit to plaintiff's medical malpractice and wrongful death claims also would militate against an extension in the interests of justice. Leader v. Maroney, Ponzini Spencer, 97 NY2d at 105; Posada Pelaez, 37 AD3d 168; Yardeni v. Manhattan Eye, Ear Throat Hosp., 9 AD3d at 298; Colon v. Bailey, 26 AD3d 454, 456 (2nd Dep't 2006). Likewise, the prejudice to defendant from an extension, in addition to the principles embodied in the statutes of limitations, would contravene the interests of justice. Leader v. Maroney, Ponzini Spencer, 97 NY2d at 106-107; Posada Pelaez, 37 AD3d 168; De Vries v. Metropolitan Transit Authority, 11 AD3d at 313; Ludemann v. Maisel, 292 AD2d at 429.
A. Plaintiff's Good Cause
The sequence of events from January 3 to September 5, 2006, and afterward, until plaintiff's cross-motion November 29, 2006, hardly makes out an acceptable excuse for plaintiff's delay both in serving defendant Malone and in seeking a further extension for service. C.P.L.R. §§ 306-b, 2004; Leader v. Maroney, Ponzini Spencer, 97 NY2d at 107; De Vries v. Metropolitan Transit Authority, 11 AD3d at 313; Yardeni v. Manhattan Eye, Ear Throat Hosp., 9 AD3d at 297-98; Riccio v. Ghulam, 24 AD3d at 560. While plaintiff's inaction may not establish outright wilfulness, her complacency does demonstrate neglect of a court ordered deadline and serious lack of concern regarding Dr. Malone's role in any malpractice or death, perhaps explained by the several other potentially liable defendants, including his alleged employer, Lawrence Hospital Center, which would be vicariously liable for his actions. Aff. of Jennifer S. Dany, Ex. A ¶ 17. See, e.g., Kavanaugh v. Nussbaum, 71 NY2d 535, 546 (1988); Hill v. St. Clare's Hosp., 67 NY2d 72, 79 (1986); Shafran v. St. Vincent's Hosp. Med. Ctr., 264 AD2d 553, 557 (1st Dep't 1999); Harrington v. Neurological Inst. of Columbia Presbyt. Med. Ctr., 254 AD2d 129, 130 (1st Dep't 1998).
B. Interests of Justice
Plaintiff makes no attempt to demonstrate either diligence in pursuing service or any merit to her claims against Dr. Malone. Posada Pelaez, 37 AD3d 168; Colon v. Bailey, 26 AD3d at 456; Smith v. Southside Hosp., 15 AD3d 387, 388 (2nd Dep't 2005); Baione v. Central Suffolk Hosp., 14 AD3d 635, 636 (2nd Dep't 2005). She claims simply that she cannot show any merit whatsoever without disclosure directly from Dr. Malone himself.
Plaintiff fails to explain why she could not piece together any showing of Dr. Malone's involvement in the alleged medical malpractice and ensuing death from all the medical records and other defendants' depositions she has obtained through disclosure. Although the other defendants may not have been forthcoming in implicating Dr. Malone, plaintiff nowhere indicates that, upon her inquiry, there was any such unresponsiveness or otherwise how the records and depositions conducted are completely inadequate.
Nor has plaintiff articulated why Dr. Malone's deposition is indispensable to a bare prima facie showing of his negligence or what evidence she even expects to obtain if provided an opportunity to depose him or to request any records of Dr. Malone not in the other defendants' possession, custody, or control. For example, if he were deposed, what specific facts might he reveal that no other source reveals? Absent at least that much, the court finds no basis to permit that disclosure, see C.P.L.R. § 3212(f), whether by permitting the late service of Dr. Malone, or by conditioning a further extension on a showing of merit after limited pre-action disclosure. See C.P.L.R. 3102(c). In the final analysis, without any showing of merit, it is impossible to determine the interests of justice, as surely this standard does not permit a claim devoid of merit to proceed.
C. Defendant Malone's Prejudice
Although Justice Renwick found as of January 3, 2006, that defendant would suffer no prejudice from plaintiff's failure to meet the original service deadline, the situation is different over a year later. Then, defendant Malone did not oppose plaintiff's motion for an extension of time to serve him, let alone claim prejudice. Now, not only have many more months elapsed since expiration of the statutes of limitations, but all the other parties have conducted extensive disclosure, which Dr. Malone likely would need to replicate, at greater expense, were he belatedly joined in the action. See Ramos v. City of New York, 30 AD3d 201 (1st Dep't 2006); Abreo v. Baez, 29 AD3d 833, 834 (2nd Dep't 2006).
Plaintiff maintains that Dr. Malone's attorney for this motion has known about this action since the attorney represented a prior dismissed defendant. Plaintiff has not shown, however, that Dr. Malone, in Ireland, is familiar with the substance of this action. Slate v. Schiavone Constr. Co., 4 NY3d at 817; Leader v. Maroney, Ponzini Spencer, 97 NY2d at 107; Pecker v. Iron Works, Inc. v. Namasco Corp., 37 AD3d 367, 368 (1st Dep't 2007); Posada Pelaez, 37 AD3d 168. Most significantly, again due to plaintiff's utter failure to support or detail her claims against Dr. Malone, no one knows the substance of her claims against him specifically. Pecker v. Iron Works, Inc. v. Namasco Corp., 37 AD3d at 368.
IV. CONCLUSION
Although plaintiff's burden under C.P.L.R. § 306-b is lenient, here the court is faced with her evident complacency regarding her action against defendant Malone, reflected also by her failure even to attempt a showing or substantiate an expectation that her claims against him are meritorious. Even if his prejudice, were he required now to institute a defense to those medical malpractice and wrongful death claims accruing well over three years ago, is not compelling, plaintiff has nonetheless utterly failed to demonstrate a single factor supporting a further extension of time for service. Adopting plaintiff's position would dilute the interests of justice standard down to giving plaintiff endless chances to show a modicum of merit. Consequently, the court grants defendant Malone's motion to dismiss him from the action and denies plaintiff's cross-motion to extend the time to serve Dr. Malone further beyond those three years after the claims accrued. C.P.L.R. §§ 306(b), 306-b, 2004.