Opinion
No. 01392/2012.
2013-01-24
Melissa SCIACCHITANO, Plaintiff, v. Donald C. PHILLIBERT, Jr., M.D., Defendant.
Rappaport, Glass, Greene & Levine, LLP, Hauppauge, Attorney for Plaintiff. Eric T. Schneiderman, Attorney General of the State of N.Y. by Joseph Tipaldo, Asst. Atty. Gen., New York City, Attorney for Defendant.
Rappaport, Glass, Greene & Levine, LLP, Hauppauge, Attorney for Plaintiff. Eric T. Schneiderman, Attorney General of the State of N.Y. by Joseph Tipaldo, Asst. Atty. Gen., New York City, Attorney for Defendant.
WILLIAM B. REBOLINI, J.
Upon the following papers numbered 1 to 31 read upon this application for dismissal of the complaint and cross-motion for an order pursuant to CPLR 306–b: Notice of Motion and supporting papers, 1–7; Notice of Cross Motion and supporting papers, 14–21; Answering Affidavits and supporting papers, 8–10; 22–28; Replying Affidavits and supporting papers, 11–13, 29–31; it is
ORDERED that, this motion by defendant Donald C. Phillibert, M.D., for an order dismissing the complaint of Melissa Sciacchitano, and the separate motion by plaintiff for an order pursuant to CPLR 306–b extending her time to serve the defendant having been referred to a hearing by order of this Court dated September 27, 2012, and counsel for plaintiff and for the defendant having appeared before this Court on January 16, 2013 for the aforementioned hearing and having agreed to waive the conduct of a hearing and, instead, submit the issues raised in these motions for determination based on the papers previously filed, the defendant's application for dismissal of the complaint against him is denied; and it is further
ORDERED that the motion by plaintiff for an order pursuant to CPLR 306–b extending the time to serve the defendant is granted ( see Irwin v. LaGuardia Hosp., 23 AD3d 349, 805 N.Y.S.2d 549 [2d Dept 2005] ) provided, however, that service is completed within sixty (60) days from the date of this order.
Plaintiff commenced this action to recover damages in alleged medical malpractice related to her care from July 11, 2009 to July 12, 2009 at SUNY Stony Brook University Hospital. It is alleged by plaintiff that the physicians who managed her labor and delivery permitted plaintiff to remain in the second stage of labor for an excessively long period of time, which resulted in operative damage through a perforation of her bladder. Previously on June 8, 2010, plaintiff commenced an action against Lauri Budnick, M.D., J. Gerald Quirk, M.D., and University Associates in OB/GYN, P.C. under Suffolk index number 20578/2010. A copy of each complaint verified by the plaintiff was submitted to the Court. Plaintiff's counsel has represented that during her examination before trial on December 20, 2011, Dr. Budnick testified that Donald Phillibert participated in plaintiff's management both before and during her C-section, and that it was during the C-section that the plaintiff's bladder was perforated. It is also asserted that Dr. Budnick testified that Dr. Phillibert was holding the scalpel when the perforation occurred. While the pertinent portion of Dr. Budnick's deposition testimony is referred to in plaintiff's counsel's affirmation as “Exhibit E”, a review of the papers submitted in connection with these applications reveals that neither an Exhibit E nor copies of the deposition testimony were submitted to the Court.
Shortly after the completion of Dr. Budnick's deposition testimony, this action was commenced by the filing of the summons and complaint on January 6, 2012. Service upon the defendant was initially effected by purported service under CPLR 308(2) on January 12, 2012 at SUNY Stony Brook University Hospital. In support of his motion for dismissal on the ground that this Court lacks personal jurisdiction, defendant submitted an affirmation in which he attests that he has continuously lived since August 2011 and practiced medicine since October 2011 in the State of Pennsylvania. The doctor also states that he has not resided in New York or worked at SUNY Stony Brook University Hospital since August 2011. He is currently an attending physician in the OB/GYN Department at Drexel University College of Medicine, Hahnemann Hospital, in Philadelphia, PA.
In accordance with CPLR 306–b, service of the summons and complaint was to have been made within 120 days of filing by May 5, 2012. On May 2, 2012, defendant “Donald Phillibert Jr MD c/o Dresel (sic) OB/GYN” was served at 1601 Cherry Street, Philadelphia, PA by delivery of the summons and complaint to Deborah Fisher, Risk Management, with mailing by “prepaid, first class mail on 5/4/12 from Philadelphia PA 19115.” The manner of service is indicated on the affidavit of service form to be “Substituted at Business: By leaving, during office hours, copies at the office of the person/entity being served with the person apparently in charge thereof.” In a separate affidavit of attempted service dated October 19, 2012, which bears the signature of the process server Corey Bey as well as the purported signature but not the stamp of a notary public, it is stated that on May 2, 2012, Bey went to 245 North 15th Street, Philadelphia, and was informed that Dr. Phillibert was employed at 255 South 17th Street, Philadelphia. He was also informed that “it is company policy that all legal documents even for the doctors personally to go to risk management at 1601 Cherry Street, Philadelphia. He then served Deborah Fisher in risk management, who “stated that [the defendant] is an employee and that she [could] accept service on his behalf.”
In addition to the foregoing, plaintiff submitted the affidavit of Lisa Cerrato in which it is averred that in May 2012 she placed a call to Drexel OB/GYN and confirmed that the defendant works there and that Drexel OB/GYN receives all legal documents at Risk Management, 1601 Cherry Street, Philadelphia, PA, including service upon doctors. On October 25, 2012, she again called Drexel OB/GYN and confirmed that all legal documents, “even the ones for doctors get delivered to Risk Management at 1601 Cherry Street, Philadelphia, PA attention Deborah.”
In reply to plaintiff's assertion that service was effected upon defendant at 1601 Cherry Street, Philadelphia, PA, defendant submitted an affirmation in which he states that he is “completely unfamiliar with anyone by the name of Deborah Fisher as well as with the address where the paperwork was purportedly served.” According to his affirmation, the address at which service was allegedly made is neither defendant's business address nor his residential address. In addition, defendant claims that he learned about the attempt to serve him in Philadelphia through his attorneys and, as of June 18, 2012, he had not been “personally served with any paperwork regarding this claim by the plaintiff's attorneys or anyone else working on their behalf.”
In view of the defendant doctor's denial of receipt of the summons and complaint through service upon the risk management office of a hospital facility that is not named in plaintiff's medical malpractice action, this Court can not find that such service upon the defendant Phillibert was proper. However, “extensions of time should be liberally granted whenever plaintiffs have been reasonably diligent in attempting service” (Murphy v. Hoppenstein, 279 A.D.2d 410, 410–411, 720 N.Y.S.2d 62 [1st Dept 2001], quoting Mem of Off of Ct Admin 97–67R, 1997 N.Y. Legis Ann, at 319). Accordingly, this Court must consider plaintiff's application for an order pursuant to CPLR 306–b extending the time for service upon good cause shown or in the interest of justice.
The plaintiff demonstrated that reasonably diligent efforts were made in attempting proper and timely service of process upon the defendant and has shown good cause under CPLR 306–b. The interest of justice standard under the statute requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties; the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendants (Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 761 N.E.2d 1018, 736 N.Y.S.2d 291 [2001] ). In this case, the action was timely commenced, the defendant had actual notice of the action, and there is no evidence that the defendant would suffer prejudice as a result of the delay in service ( see Selmani v. City of New York, 100 AD3d 861, 954 N.Y.S.2d 580 [2d Dept 2012] ). Accordingly, an extension of time is also warranted in the interests of justice.