Opinion
5087/09.
Decided January 22, 2010.
Barry, McTiernan Moore, Plaintiff.
McAloon Friedman PC, Defendant.
Defendants move pursuant to CPLR 3211 dismissing the complaint for lack of personal jurisdiction and such other and further relief as this Court deems proper. Plaintiff submits opposition to defendants' motion and cross moves for an Order pursuant to CPLR 306 (b) for an extension of time for plaintiff to serve her amended complaint upon either or both defendants in the event the Court finds service to be invalid.
Now, upon the foregoing papers and upon oral argument on January 7, 2010 and due deliberation had thereon, the motion of defendants is Granted only to the extent of dismissing the action, without prejudice, against ANTHONY BERTELLE, M.D., P.C. for lack of personal jurisdiction. Plaintiff's cross motion is Granted only to the extent that plaintiff is hereby given an extension of 120 days from Notice of Entry of this Order to re-serve ANTHONY BERTELLE, M.D., P.C. with Summons and Complaint.
This is an action sounding in medical malpractice claiming that, on or about March 5, 2007, defendant failed to diagnose myocarditis. On or about March 3, 2009, plaintiff, then appearing Pro Se, commenced the action against Dr. Bertelle, individually, and against his professional corporation ("P.C."), by filing a Summons and Complaint with the Clerk of the Court. On May 4, 2009, after she retained an attorney, plaintiff amended the complaint to include a Notice of Appearance, a Certificate of Merit and an Attorney Verification. Plaintiff states that on May 7, 2009, she served the amended Summons and Complaint upon Dr. Bertelle, individually, pursuant to CPLR 308(2), by delivery to Ms. Taormina, Dr. Bertelle's secretary, and mailing same to Dr. Bertelle's actual place of business. In addition, plaintiff claims that service upon the P.C. was accomplished pursuant to CPLR 311(a)(1) by service on Ms. Taormina, as an agent authorized to accept service, and a mailing to the principle executive office. Defendants contest the validity of service on the doctor, individually, as well as on the professional corporation.
The first claim raised by defendants is that plaintiff failed to obtain leave of court before amending her complaint, as dictated by CPLR § 3025. The complaint was amended to include a Notice of Appearance, a Certificate of Merit and an Attorney Verification; the substantive content of the complaint remained unchanged. CPLR § 3025 states that a party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it. Since the complaint was amended before the defendants' time to serve a responsive pleading expired, plaintiff complied with the statute.
Next, defendant claims that service on Dr. Bertelle, indvidually, is defective because the process server delivered the papers to the doctor's receptionist without declaring that the papers were a summons and complaint. It should be noted that defendant neither contests that Ms. Taormina satisfies the "suitable age and discretion" requirement, nor raises an issue regarding the mailing requirement. Defendant's only issue regarding service on Dr. Bertelle, individually, is that he claims that CPLR 308(2) requires that the process server announce that service of process is being made. He claims that failure to do so renders service jurisdictionally invalid. Of significance is that Dr. Bertelle does not claim that the receptionist resisted service; indeed, the affirmation of Ms. Taormina states that she "did not refuse to or resist acceptance of the documents."
Section 308 (2) of the CPLR states in relevant part that personal service shall be made:
by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served . . .
The Court of Appeals has held that the requirements set forth in the statute are "reasonably calculated, under all the circumstances, to apprise the interested party of the pendency of the action." Bossuk v. Steinberg, 58 NY2d 916 (1983) citing, Mullane v Central Hanover Trust Co., 339 US 306, 314.
Contrary to defendant's argument, there is no blanket requirement under CPLR § 308(2) that there be an announcement or oral notification that service of process is being effectuated. The "notification requirement" is only applicable to substituted service in circumstances involving resistance to service or where there is a physical separation between the process server and the person to whom service is being delivered. See, Bossuk v Steinberg, supra.
In Bossuk, the Court of Appeals stated that, with personal service, "if the person to be served interposes a door between himself and the process server, the latter may leave the summons outside the door, provided the person to be served is made aware that he is doing so." (Emphasis added), Supra at 918. Similarly, substitute service may by accomplished "by leaving a copy of the summons outside the door of the person to be served upon the refusal of a person of suitable age and discretion' to open the door to accept it, provided the process server informs the person to whom delivery is being made that this is being done." (Emphasis added), Supra at 918. The Court of Appeals in Bossuk clearly noted that, in that case, there was physical resistance of service.
All the cases that Dr. Bertelle cites to support his position involve instances where there has been resistance (physical or otherwise) and/or refusal to accept service. Process server left papers outside the residence. Macgregor v. Piontkkowski, 133 AD2d 263 (2d Dept 1987); Process server threw papers on the steps of the back door. Bankers Trust Company of California v. Toukas, 303 AD2d 343 (2d Dept 2003); Defendant resisted service. Kapsis v Green, 285 AD2d 494 (2d Dept 2001); Defendant resisted service. Coyne v Besser, 154 AD2d 503 (2d Dept 1989); Service was resisted by person refusing to open the door. Roman v Guzzardo, 198 AD2d 489 (2d Dept 1993). Indeed, where there is no resistance to service, this court found no support for Dr. Bertelle's position that CPLR § 308(2) requires that the person of suitable age and discretion be advised of the content of the papers being served.
As no issue was raised as to plaintiff's compliance with the mailing requirement in CPLR 308(2) and defendant does not refute the plaintiff's proof that the summons was delivered to a person of suitable age and discretion at the defendant's actual place of business, this court finds that service of process upon Anthony Bertelle, M.D., individually, was valid pursuant to CPLR 308(2).
Service on the P.C. is contested on the claim that Ms. Taormina is not an agent authorized to accept service on the corporation's behalf.
CPLR 311 (a)(1) provides that
Personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows:
1. upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. A business corporation may also be served pursuant to section three hundred six or three hundred seven of the business corporation law. A not-for-profit corporation may also be served pursuant to section three hundred six or three hundred seven of the not-for-profit corporation law;
In addition, service may be made upon someone whom the corporation cloaks with authority. Fashion Page v Zurich Ins. Co., 50 NY2d 265 (1980); Rockiki v 24 Hour Courier Service, 282 AD2d 664 (2d Dept 2001); Eastman Kodak Co. v Miller and Miller Consulting Actuatires, 195 AD2d 591 (2d 1993); Seda v Armory Estates, 138 AD2d 362 (2d Dept 1988). Furthermore, the Second Department holds that service on a receptionist is valid pursuant to CLPR 311 (a)(1) where the receptionist's action has led to the reasonable belief that the he/she is authorized to accept service. Aguilera v. Pistili Construction and Development Corp., 63 Ad3d 765 (2d Dept 2009).
In Aguilera, service was made on a receptionist at the front desk. The process server had previously served the corporation in the same office and in the same manner on at least three prior occasions, and he read the summons and complaint to the same receptionist who informed the process server that she could accept service on behalf of the corporation. The court found that the "process server acted reasonably and with due diligence" and that it was reasonable for the process server to believe that the receptionist was authorized to accept service on behalf of the corporate defendant. Supra at 767.
In this case, intending to effect service upon the P.C., the process server delivered the summons and complaint upon Ms. Taormina, a receptionist in the defendant's office. Clearly, Ms Taormina is not an officer, director, managing agent, or cashier of the corporation and there is no evidence that she was an agent, authorized by appointment or law, to accept service on behalf of the P.C. The plaintiff states that the process server asked Ms Taormina "if anyone could accept service of these legal papers." The process server affirms that Ms. Taormina said that "she could take the papers." Ms. Taormina states that "he did not ask me to accept the documents he was holding and I did not refuse or resist acceptance of the documents." Accepting both versions, it cannot be said that it was reasonable for the process server to believe that Ms. Taormina was authorized to accept service. Ms. Taormina's actions or acquiescence were insufficient to lead to a reasonable belief that she was an agent authorized to accept service and to confer jurisdiction upon the corporation. Therefore, service on the P.C. fails to comply with CPLR § 311(a)(1) and is therefore, invalid.
Moreover, even where as here, a defendant eventually acquires actual notice of the lawsuit, actual notice alone will not sustain the service or subject a person to the court's jurisdiction when there has not been compliance with prescribed conditions of service (see, Frankel v. Schilling, 149 AD2d 657 (2d Dept 1989); Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 117 AD2d 135 (2d Dept 1986); Bank of America National Trust and Savings Association v John Herrick, Bank of America Nat. Trust Sav. Ass'n v. Herrick, 233 AD2d 351, 352 (2 Dept. 1996).
In her cross-motion, plaintiff requests an extension of time to serve defendants in the event that this court finds lack of personal jurisdiction over either or both defendants. CPLR 306-b, which permits the court to extend a plaintiff's time to serve a summons and complaint for good cause shown or in the interest of justice', is applicable where service, timely made within the 120-day period, is subsequently found to have been defective. Citron v. Schlossberg, 282 AD2d 642 (2d Dept 2001); Lee v. Corso, 300 AD2d 385 (2 Dept 2002); Murphy v. Hoppenstein, 279 AD2d 410 (2d Dept 2001); Earle v. Valente, 302 AD2d 353 (2 Dept 2003).
The Court of Appeals in Leader v Maroney, Ponzini and Spencer, 97 NY2d 95 (2001), reviewed the, at the time, new amendment to CPLR 306-b, which plaintiff seeks to invoke herein. The court found that the statute grants courts two separate standards by which to measure an application for an extension of time to serve: "good cause" or "interest of justice". The court, in examining the legislative history of the amendment, found that the "interest of justice" is an additional and broader standard than "good cause" and was proposed to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant. Id. at 105. The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests of the parties. The court may consider diligence, or the lack thereof, along with any other relevant factor including, expiration of the Statute of Limitations, the meritorious nature of the case, the length of the delay in service, the promptness of the plaintiff's request for the extension of time and prejudice to the defendant. Id. at 106; Cooper v. New York City Bd. of Education , 55 AD3d 526 (2 Dept. 2008). In sum, "the statute empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion". Leader at 106.
In this case, an extension of time to serve Anthony Bertelle, M.D., P.C. would not prejudice the P.C. as it has actual notice of the action through service upon Dr. Bertelle, individually. Clearly, the doctor and the P.C. are one and the same. Furthermore, the action was timely commenced and the motion and cross motion were made mere weeks after the Statute of Limitations expired on September 2009. Under these circumstances, given the lack of prejudice to the P.C., the expeditiousness of the plaintiff in attempting to effectuate service upon the defendants and in requesting an extension of time under this section, plaintiff's request for extension of time to serve process is granted, in the interest of justice. Plaintiff is granted 30 days from entry of this order to re-serve ANTHONY BERTELLE, M.D., P.C. with Summons and Complaint pursuant to CPLR § 311(a)(1) or pursuant to Business Corporation Law § 306.
This constitutes the decision, opinion and order of this court.