Opinion
888 CA 21-01322
11-18-2022
MEAGAN R., Individually and as Administrator of the Estate of K.R., Deceased, Plaintiff-Respondent, v. Ahmed MANSOUR, M.D., Defendant-Appellant, et al., Defendants.
SUGARMAN LAW FIRM, LLP, SYRACUSE (ADAM P. CAREY OF COUNSEL), FOR DEFENDANT-APPELLANT. THE FITZGERALD LAW FIRM, PC, YONKERS (MITCHELL GITTIN OF COUNSEL), AND LAW OFFICE OF JOHN M. DALY, FOR PLAINTIFF-RESPONDENT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (ADAM P. CAREY OF COUNSEL), FOR DEFENDANT-APPELLANT.
THE FITZGERALD LAW FIRM, PC, YONKERS (MITCHELL GITTIN OF COUNSEL), AND LAW OFFICE OF JOHN M. DALY, FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, individually and as administrator of decedent's estate, commenced this action seeking to recover damages arising from the alleged negligence of defendants in managing plaintiff's pregnancy, labor, and delivery. Ahmed Mansour, M.D. (defendant) appeals from an order that denied his motion to dismiss the complaint against him for lack of proper service and granted plaintiff's cross motion insofar as it sought an order extending the time in which to serve defendant and authorizing an alternative method of service. We affirm.
"On a motion to dismiss based on lack of proper service, the court may, upon good cause shown or in the interest of justice, extend the time for service" ( Pierce v. Village of Horseheads Police Dept. , 107 A.D.3d 1354, 1356, 970 N.Y.S.2d 95 [3d Dept. 2013] [internal quotation marks omitted]). "It is well settled that the determination to grant [a]n extension of time for service is a matter within the court's discretion" ( Moss v. Bathurst , 87 A.D.3d 1373, 1374, 930 N.Y.S.2d 695 [4th Dept. 2011] [internal quotation marks omitted]; see generally Matter of Delaware Operations Assoc. LLC v. New York State Dept. of Health , 187 A.D.3d 1560, 1561, 132 N.Y.S.3d 489 [4th Dept. 2020] ; Bradley v. Rexcoat , 187 A.D.3d 1576, 1576, 133 N.Y.S.3d 151 [4th Dept. 2020] ). After weighing the relevant factors, including the "expiration of the [s]tatute of [l]imitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of ... plaintiff's request for the extension of time, and prejudice to defendant" ( Leader v. Maroney, Ponzini & Spencer , 97 N.Y.2d 95, 105-106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ), and noting that "no one factor is more important than the others" ( Moss , 87 A.D.3d at 1374, 930 N.Y.S.2d 695 ), we reject defendant's contention that Supreme Court abused its discretion in denying his motion and granting plaintiff's cross motion insofar as it sought an extension of time to serve defendant (see generally id. ).
We similarly reject defendant's contention that the court abused its discretion in granting plaintiff's cross motion insofar as it sought authorization for an alternative method of service. " CPLR 308 (5) vests a court with the discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308 (1), (2), and (4) are ‘impracticable’ " ( Astrologo v. Serra , 240 A.D.2d 606, 606, 659 N.Y.S.2d 481 [2d Dept. 1997] ; see Safadjou v. Mohammadi [Appeal No. 3] , 105 A.D.3d 1423, 1424, 964 N.Y.S.2d 801 [4th Dept. 2013] ). "Although the impracticability standard is not capable of easy definition ..., [a] showing of impracticability under CPLR 308 (5) does not require proof of actual prior attempts to serve a party under the methods outlined pursuant to subdivisions (1), (2) or (4)" ( Safadjou , 105 A.D.3d at 1424, 964 N.Y.S.2d 801 [internal quotation marks omitted]; see Richards v. Hedman Resources Ltd. , 204 A.D.3d 1407, 1409, 167 N.Y.S.3d 677 [4th Dept. 2022], appeal dismissed 39 N.Y.3d 931, 177 N.Y.S.3d 200, 198 N.E.3d 475 [Oct. 20, 2022] ; David v. Total Identity Corp. , 50 A.D.3d 1484, 1485, 857 N.Y.S.2d 380 [4th Dept. 2008] ). Here, we conclude that plaintiff established that service upon defendant pursuant to CPLR 308 (1), (2), or (4) would be impracticable (see Safadjou , 105 A.D.3d at 1424, 964 N.Y.S.2d 801 ; State St. Bank & Trust Co. v. Coakley , 16 A.D.3d 403, 403, 790 N.Y.S.2d 412 [2d Dept. 2005], lv dismissed 5 N.Y.3d 746, 800 N.Y.S.2d 375, 833 N.E.2d 710 [2005] ). Specifically, plaintiff established that defendant had left the United States and declared his intention to remain in Saudi Arabia, where he worked for the Saudi Arabian government (see Safadjou , 105 A.D.3d at 1424, 964 N.Y.S.2d 801 ; Astrologo , 240 A.D.2d at 606-607, 659 N.Y.S.2d 481 ). Further, plaintiff established that Saudi Arabia is not a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ( 20 UST 361, TIAS No. 6638 [1965] ).