Opinion
01-05-2017
Pavel KOMANICKY, Appellant, v. Salim G. CONTRACTOR et al., Respondents.
Catherine E. Stuckart, Binghamton, for appellant. Levene Gouldin & Thompson, LLP, Vestal (Margaret J. Fowler of counsel), for Salim G. Contractor and another, respondents. Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for Chief Executive Officer Albany Medical College Faculty Group Practice and others, respondents. Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Mackenzie C. Monaco of counsel), for Gary Siskin, respondent.
Catherine E. Stuckart, Binghamton, for appellant.
Levene Gouldin & Thompson, LLP, Vestal (Margaret J. Fowler of counsel), for Salim G. Contractor and another, respondents.
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for Chief Executive Officer Albany Medical College Faculty Group Practice and others, respondents.
Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Mackenzie C. Monaco of counsel), for Gary Siskin, respondent.
Before: PETERS, P.J., McCARTHY, EGAN JR. and LYNCH, JJ.
PETERS, P.J. Appeal from an order of the Supreme Court (Lebous, J.), entered August 10, 2015 in Broome County, which granted defendants' motions to dismiss the complaint.
Plaintiff commenced this medical malpractice action against defendants stemming from allegedly negligent treatment and care he received in May and June 2011. In lieu of answering, defendants moved to dismiss the complaint on the basis of, among other things, lack of personal jurisdiction. Supreme Court granted the motions, and plaintiff appeals. The sole issue on this appeal is whether Supreme Court properly dismissed the complaint for lack of personal jurisdiction. Plaintiff first attempted to effectuate service upon defendants by mail pursuant to the alternative service method set forth in CPLR 312–a. Service pursuant to this method, however, is complete only if the defendant signs and returns the acknowledgment of receipt form (see CPLR 312–a[b] ; Cordero v. Barreiro–Cordero, 129 A.D.3d 899, 900, 10 N.Y.S.3d 454 [2015], lv. dismissed 26 N.Y.3d 1030, 20 N.Y.S.3d 339, 41 N.E.3d 1155 [2015] ; Strong v. Bi–Lo Wholesalers, 265 A.D.2d 745, 746, 698 N.Y.S.2d 738 [1999] ; Dominguez v. Stimpson Mfg. Corp., 207 A.D.2d 375, 375, 616 N.Y.S.2d 221 [1994] ; Matter of Shenko Elec. v. Harnett, 161 A.D.2d 1212, 1213, 558 N.Y.S.2d 859 [1990] ), which was not done here by any of the 16 named defendants. Accordingly, plaintiff was required to effect service in another manner (see Dominguez v. Stimpson Mfg. Corp., 207 A.D.2d at 375, 616 N.Y.S.2d 221 ; Matter of Shenko Elec. v. Harnett, 161 A.D.2d at 1213, 558 N.Y.S.2d 859 ). His subsequent attempt to effect service of the summons and notice by personal delivery was likewise ineffectual, as such service did not occur within 120 days of the filing of the summons and notice (see CPLR 306–b ) and, further, was not followed up by an additional mailing of those documents within 20 days (see CPLR 308[2] ). Thus, plaintiff failed to serve any of the defendants in the manner required by law.
To the extent that plaintiff's papers in opposition to the motions can be read as requesting an extension of time to serve defendants pursuant to CPLR 306–b, such affirmative relief should have been sought by way of a cross motion on notice (see CPLR 2215 ; Matter of Ontario Sq. Realty Corp. v. LaPlant, 100 A.D.3d 1469, 1469, 953 N.Y.S.2d 543 [2012] ; Lee v. Colley Group McMontebello, LLC, 90 A.D.3d 1000, 1000–1001, 934 N.Y.S.2d 831 [2011] ; DeLorenzo v. Gabbino Pizza Corp., 83 A.D.3d 992, 993, 921 N.Y.S.2d 565 [2011] ; Rinaldi v. Rochford, 77 A.D.3d 720, 720, 908 N.Y.S.2d 592 [2010] ). In any event, plaintiff did not demonstrate the existence of facts that would support the granting of such relief. Supreme Court properly found that plaintiff had not shown good cause for an extension of time (see Navarrete v. Metro PCS, 137 A.D.3d 1230, 1231, 27 N.Y.S.3d 397 [2016] ; Mead v. Singleman, 24 A.D.3d 1142, 1143–1144, 806 N.Y.S.2d 783 [2005] ) and, upon our careful consideration of the appropriate factors (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ), we are unpersuaded that the time for service should have been extended "in the interest of justice" (CPLR 306–b ). In addition to plaintiff's lack of diligence in attempting to effectuate service within the time period prescribed by CPLR 306–b (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ; Hine v. Bambara, 66 A.D.3d 1192, 1193, 889 N.Y.S.2d 685 [2009] ), his purported " request" for an extension of time for service, even if it may be deemed as such, was made more than 15 months after the 120–day period had expired and only after defendants had moved for dismissal (see Hine v. Bambara, 66 A.D.3d at 1193, 889 N.Y.S.2d 685 ; Matter of Anonymous v. New York State Off. of Children & Family Servs., 53 A.D.3d 810, 811–812, 862 N.Y.S.2d 392 [2008], lv. denied 11 N.Y.3d 709, 868 N.Y.S.2d 602, 897 N.E.2d 1086 [2008] ; City of Albany v. Wise, 298 A.D.2d 783, 784, 750 N.Y.S.2d 653 [2002] ). Moreover, the existence of a meritorious cause of action has not been established. Under these circumstances, we find no basis upon which to disturb Supreme Court's determination (see Deep v. Boies, 121 A.D.3d 1316, 1323–1324, 995 N.Y.S.2d 298 [2014], lv. denied 25 N.Y.3d 903, 2015 WL 1526052 [2015] ; Hine v. Bambara, 66 A.D.3d at 1193, 889 N.Y.S.2d 685 ; Matter of Anonymous v. New York State Off. of Children & Family Servs., 53 A.D.3d at 812, 862 N.Y.S.2d 392 ; Maiuri v. Pearlstein, 53 A.D.3d 816, 817, 862 N.Y.S.2d 394 [2008] ; City of Albany v. Wise, 298 A.D.2d at 784, 750 N.Y.S.2d 653 ).
ORDERED that the order is affirmed, with one bill of costs.
McCARTHY, EGAN JR. and LYNCH, JJ., concur.