Opinion
No. 61194.
05-27-2016
Aaron BOVEE, As Administrator of the Estate of Thomas M. Bovee, and Lisa Bovee, Plaintiffs, v. CHAMPLAIN VALLEY PHYSICIANS HOSPITAL MEDICAL CENTER, Champlain Valley Health Network, Inc., Community Providers, Inc., Fletcher Allen Partners, Inc., The University of Vermont Health Network Inc., Jean-paul Menoscal, M.D., Howard L. Yeaton, M.D., Victor W. Ludewig, M.D., Edward J. Hannan, M.D., Wayne A. Abrahams, M.D. and Stephen G. Hausrath, M.D., Defendants.
LaFave Wein & Frament, PLLC, Guilderland (Matthew T. Fahrenkopf of counsel), for plaintiff. Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Peter M. Scolamiero of counsel), for defendant Jean–Paul Menoscal, M.D. Stafford, Owens, Piller, Murnane, Kelleher & Trombley PLLC, Plattsburgh (Walter L. Williams of counsel), for defendants Champlain Valley Physicians Hospital Medical Center, Champlain Valley Health Network, Inc. Community Providers, Inc., Fletcher Allen Partners, Inc. and The University of Vermont Health Network, Inc. Phelan, Phelan & Danek, LLP, Albany (Ryan Perry of counsel), for defendant Howard L. Yeaton, M.D. Napierski, Vandenburgh, Napierski & O'Connor, LLP, Albany (Shawn F. Brousseau of counsel), for defendant Victor W. Ludewig, M.D. Maguire Cardona, P.C., Albany (Kathleen Barclay of counsel), for defendant Edward J. Hannan, M.D. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (William D. Yoquinto of counsel), for defendant Wayne A. Abrahams, M .D. Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Donald Ford of counsel), for defendant Stephen G. Hausrath, M.D.
LaFave Wein & Frament, PLLC, Guilderland (Matthew T. Fahrenkopf of counsel), for plaintiff.
Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Peter M. Scolamiero of counsel), for defendant Jean–Paul Menoscal, M.D.
Stafford, Owens, Piller, Murnane, Kelleher & Trombley PLLC, Plattsburgh (Walter L. Williams of counsel), for defendants Champlain Valley Physicians Hospital Medical Center, Champlain Valley Health Network, Inc. Community Providers, Inc., Fletcher Allen Partners, Inc. and The University of Vermont Health Network, Inc.
Phelan, Phelan & Danek, LLP, Albany (Ryan Perry of counsel), for defendant Howard L. Yeaton, M.D.
Napierski, Vandenburgh, Napierski & O'Connor, LLP, Albany (Shawn F. Brousseau of counsel), for defendant Victor W. Ludewig, M.D.
Maguire Cardona, P.C., Albany (Kathleen Barclay of counsel), for defendant Edward J. Hannan, M.D.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (William D. Yoquinto of counsel), for defendant Wayne A. Abrahams, M .D.
Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Donald Ford of counsel), for defendant Stephen G. Hausrath, M.D.
ROBERT J. MULLER, J.
Presently before the court is plaintiffs' motion seeking permission for service upon defendant Jean–Paul Menoscal, M.D. [hereinafter Menoscal] by serving his counsel at their offices as allowed by CPLR § 308(5) and further granting an extension of time for service pursuant to CPLR § 306–b. This is a medical malpractice action in which the uncomplicated allegations are that on October 23, 2012 Thomas M. Bovee (hereinafter decedent) presented to the emergency room of defendant Champlain Valley Physicians Hospital Medical Center (hereinafter CVPH) with, inter alia, severe abdominal pain. He was evaluated by defendant Jean–Paul Menoscal—an emergency physician—who ordered several tests, including an electrocardiogram (ECG). The ECG came back “abnormal” with “nonspecific intraventricular conduction delay ” and “inferior infarct.” The results, however, were never reported to decedent. He was admitted to CVPH for four days and discharged with a diagnosis of colitis.
Decedent returned to the emergency room of CVPH on May 5, 2013, this time complaining of shortness of breath, nausea and fatigue. Another ECG was ordered, with this one revealing 100% occlusion of the left anterior descending artery, 100% occlusion of the mid-right coronary artery and 99% occlusion of the circumflex artery in its mid segment. Decedent was immediately sent for cardiac catheterization, which was unsuccessful. Decedent became hypoxic and hypotensive and ultimately expired in the catheterization lab.
This medical malpractice action was commenced on March 2, 2015 by plaintiff Lisa Bovee, decedent's wife, and plaintiff Aaron Bovee, the administrator of his estate. On March 27, 2015, plaintiffs' process server attempted to serve Menoscal at his last known work address, Lincoln Hospital, 234 East 149th Street, Bronx, New York 10451. He was advised, however, that Menoscal “no longer work[ed] for [the] hospital” and had “moved to Australia.” Plaintiffs then retained a private investigator on April 13, 2015 for assistance in locating Menoscal. On April 24, 2015, the private investigator advised that he “found a possible address for [Menoscal] of 41 River Terrace, Apartment 501, New York, N.Y. 10282” and, further, that “he might possibl[y] be employed at Lincoln [Hospital].” As a result, plaintiffs' process server visited 41 River Terrace on or about May 21, 2015, at which time “the address was confirmed by [the] concierge as valid.” Plaintiffs' process server also visited Lincoln Hospital and confirmed—once again—that Menoscal was no longer employed there. The process server then served Menoscal at 41 River Terrace on June 3, 2015 via substitute service (see CPLR 308[2] ). Specifically, the concierge would not allow the process server to go to Menoscal's door, but “verbally confirmed that [Menoscal] resided [there] and accepted the papers” on his behalf. The process server then mailed the papers to Menoscal at 41 River Terrace on June 4, 2015—which mailing was never returned—and the affidavit of service was filed on June 6, 2015.
On October 26, 2015, counsel for Menoscal contacted plaintiffs' counsel and advised that Menoscal was not properly served, as he did not reside at 41 River Terrace. Rather, this was the residence of his ex-wife. Counsel for Menoscal indicated that he would get back to plaintiffs' counsel after speaking with Menoscal's medical malpractice insurance carrier and determining how it wished to proceed. Plaintiffs' counsel then heard nothing further, as the result of which it filed the instant motion on November 23, 2015. Plaintiffs seek (1) an extension of time in which to serve Menoscal (see CPLR 306–b ) and; (2) permission to serve Menoscal by service upon his counsel (see CPLR 308[5] ). Each aspect of the motion will be addressed in seriatim.
Pursuant to CPLR 306–b, “[i]f service is not made ... within the time provided ..., the court, upon motion, shall dismiss the action without prejudice ..., or upon good cause shown or in the interest of justice, extend the time for service.” It should be noted that “these are two separate standards upon which to base an application for an extension” (Mead v. Singleman, 24 AD3d 1142, 1143 [2005] ; see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104 [2001] ). While a showing of reasonable diligence is required to demonstrate good cause for an extension of time, “[t]he interest of justice standard is broader and permits the court to consider many factors, including the meritorious nature of the action, the expiration of the statute of limitations, the length of delay in service, [petitioner's] diligence, promptness of [petitioner's] request for an extension of time and prejudice to [respondents]” (Mead v. Singleman, 24 AD3d at 1144 ; see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105–106 ).
Plaintiffs have demonstrated reasonable diligence and are therefore entitled to an extension of time based upon good cause shown (see Bumpus v. New York City Tr. Auth., 66 AD3d 26, 32 [2009] ; compare Mead v. Singleman, 24 AD3d at 1143 ). “At least one Appellate Division decision has suggested that good cause is likely to be found where the plaintiff's failure to timely serve process is a result of circumstances beyond [its] control' “ (Henneberry v. Borstein, 91 AD3d 493, 496 [2012], quoting Bumpus v. New York City Tr. Auth., 66 AD3d at 32 ). Here, plaintiffs first attempted service upon Menoscal three weeks after the summons and complaint were filed and thereafter remained diligent in their efforts to locate him, ultimately effectuating substitute service on him at 41 River Terrace after the concierge confirmed—not once, but twice—that he resided there. While the time for service expired on June 30, 2015, plaintiffs were not aware that Menoscal in fact did not reside there until October 26, 2015, following which they promptly filed the instant motion.
It must be noted that substitute service upon the concierge of an apartment building has been deemed sufficient (see F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 797–798 [1977] ).
Menoscal contends that plaintiffs are not entitled to an extension of time based upon good cause shown because they never attempted to serve him at CVPH, which is where he treated decedent and where he continues to work on a part-time basis. Plaintiffs, on the other hand, contend that decedent was treated at CVPH more than two years prior to commencement of the action and, further, that the searches they conducted did not yield CVPH as a possible place of employment for Menoscal. Indeed, given the passage of time, plaintiffs' failure to attempt service upon Menoscal at CVPH does not negate their showing of reasonable diligence (cf. Oglseby v. Barragan, 135 AD3d 1215, 1216 [2016] ).
In any event, even if plaintiffs were not entitled to an extension of time based upon good cause shown, they are nonetheless entitled to an extension of time in the interest of justice (see Wishni v. Taylor, 75 AD3d 747, 749 [2010] ; see Dujany v. Gould, 63 AD3d 1496, 1498 [2009] ). Plaintiffs have arguably demonstrated the meritorious nature of the action, given Menoscal's undisputed failure to advise decedent of the October 23, 2012 ECG results. Further, the statute of limitations expired on May 23, 2015 and, as such, plaintiffs will be precluded from pursuing Menoscal if the requested extension is not granted. Finally, plaintiffs were diligent in their efforts to serve Menoscal, the delay in service is minimal and he has suffered no prejudice, given that he received actual notice of the action and retained counsel.
Menoscal contends that plaintiffs are not entitled to an extension in the interest of justice because they failed to submit an expert affidavit in support of their contention that the action is meritorious. This contention is without merit. In evaluating a motion for permission to file a late notice of claim in a medical malpractice action involving similar claims, the Appellate Division held as follows:
“The course of conduct of the clinic in these circumstances can be assessed on the basis of common everyday experience and knowledge without reference to an expert's opinion. One need not have a medical degree to conclude that claimant should have been told what the radiologist determined when he reviewed her X ray ...” (Matter of Caracci v. State of New York, 178 A.D.2d 876, 877–878 [1991] ).
It is noted that the meritorious nature of the action is but one of the many factors to be considered by the Court in evaluating whether plaintiffs are entitled to an extension of time in the interest of justice (see Dujany v. Gould, 63 AD3d at 1498 [2009] ).
Based upon the foregoing this aspect of the motion is granted and plaintiffs are given an extension of 120 days within which to serve Menoscal.
Turning now to plaintiffs request for permission to serve Menoscal by service upon his counsel, CPLR 308(5) provides as follows: “Personal service upon a natural person shall be made in such manner as the court ... directs, if service is impracticable under paragraphs one, two and four of this section.”CPLR 308(1) then provides for personal service “by delivering the summons ... to the person to be served,” CPLR 308(2) provides for substitute service and CPLR 308(4) provides for so-called “nail and mail” service.
Here, Menoscal has submitted an affidavit in opposition to the motion indicating that he “reside[s] in Guttenberg, New Jersey.” Menoscal further states that he has “been employed [at] Metropolitan Hospital in New York City since July of 2013 as well as continuing to work part time at CVPH.” He is also an attending physician at Astoria Urgent Care Medical Center in Queens. In view of this information, plaintiffs cannot demonstrate it is impracticable to personally serve Menoscal under CPLR 308(1), (2) and (4). This second aspect of the motion, however, is denied without prejudice.
Inasmuch as Menoscal has declined to provide his actual residence address and, further, appears to have several places of employment, service upon him may prove impracticable under CPLR 308(1), (2) and (4) notwithstanding the additional information provided. Under these circumstances, plaintiffs may file a further motion for permission to serve Menoscal by service upon his counsel.
The within constitutes the Decision and Order of this Court.
Therefore, having considered the Affirmation of Matthew T. Fahrenkopf, Esq. dated November 20, 2015 with Exhibits “A” through “J” submitted in support of the motion together with a Memorandum of Law dated November 20, 2015, Affidavit of Juan Pereira sworn to November 20, 2015, Opposing Affidavit of Peter M. Scolamiero, Esq. sworn to December 15, 2015 with Exhibits “A” through “D” and Reply Affirmation of Matthew T. Fahrenkopf, Esq. dated December 21, 2015 together with Exhibits “K” and “L” it is hereby
ORDERED that plaintiffs' motion seeking an extension of 120 days within which to serve Menoscal is granted, and it is further
ORDERED that the motion concerning plaintiffs' request for permission to serve Menoscal by service upon his counsel is denied without prejudice.
The original of this Decision and Order has been filed by the Court together with th Notice of Motion dated November 20, 2015 and the submissions enumerated above. Counsel for plaintiffs is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all parties in accordance with CPLR § 5513.