Opinion
26799/18
03-06-2019
Renee D. CHARLES, Plaintiff, v. William WOLFSON, DMD, and William Wolfson, DMD, PC, Defendants.
Plaintiff's Attorney: Lance Ehrenberg, Esq., 56 West 45th Street, New York, New York 10036, 1(212)730-0200 Defendants' Attorney: Robert A. Rosenfeld, Esq., COUMO LLC, 535 Fifth Ave., 25th Floor, New York, New York 10007, 1(212)448-9933
Plaintiff's Attorney: Lance Ehrenberg, Esq., 56 West 45th Street, New York, New York 10036, 1(212)730-0200
Defendants' Attorney: Robert A. Rosenfeld, Esq., COUMO LLC, 535 Fifth Ave., 25th Floor, New York, New York 10007, 1(212)448-9933
Joseph E. Capella, J.
The following papers numbered 1 to 4 read on this motion, noticed on December 19, 2018, on the Motion Calendar of _________.
PAPERS NUMBERED
NOTICE OF MOTION, CROSS MOTION, AFFIDAVITS & EXHIBITS 1, 2
ANSWERING AFFIDAVIT AND EXHIBITS 3
REPLY AFFIDAVIT AND EXHIBITS 4
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS DECIDED AS FOLLOWS:
By notice of motion, the plaintiff in this dental malpractice action seeks a default judgment ( CPLR 3215 ) against the defendants for their failure to answer the summons and complaint. In opposition, defendants cross move for dismissal of the complaint based on improper service ( CPLR 3211(a)(8) ) and statute of limitations ( CPLR 3211(a)(5), and alternatively for a change of venue ( CPLR § 510(1) ). Addressing plaintiff's motion first, in order to establish entitlement to a default judgment, the plaintiff is required to submit proof of valid service of process, and the facts constituting the cause of action and the default ( CPLR 3215(f) ; Miterko v. Peaslee , 80 AD3d 736 [2nd Dept 2011] ).
The affirmation by plaintiff's attorney sufficiently explained that no answer has been interposed by the defendants, and as such clearly established the third element (i.e., a default).
The proof plaintiff provides for service of process are the two affidavits of service annexed to the motion. According to these affidavits of service, the defendants were served with the summons and complaint on June 19, 2018, by delivering same to a person of suitable age and discretion at 960 Morris Park Avenue, Bronx, NY 10462. Copies of the summons and complaint were mailed to defendants on June 21, 2018, in accordance with CPLR 308(2), and it appears that these affidavits of service were filed with the Court on August 7, 2018. However, according to CPLR 308(2), the affidavit of service "shall be filed with the clerk of the court" within 20 days of either the delivery or mailing, whichever was later. In this case they were filed almost 60 days after the mailings. Given plaintiff's failure to timely file, defendants allege in their cross-motion that this action should be dismissed. ( CPLR 3211(a)(8).) Although it is clear that these affidavits of service were not timely filed with the Court, the failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the Court in its discretion pursuant to CPLR 2004. ( First v. Tezzi , 164 AD3d 758 [2nd Dept 2018].) It should be noted that there is no request in plaintiff's motion to cure this defect.
As for the facts that constitute the alleged cause of action, this may be established through a verified complaint or affidavit that provides details regarding the underlying medical malpractice action; however, these details must be provided by a party with personal knowledge (emphasis added) of the merits of the claim. ( Beltre v. Babu , 32 AD3d 722 [1st Dept 2006] ; Antiohos v. Morrison , 159 AD3d 527 [1st Dept 2018].) Hence, a complaint verified by an attorney is pure hearsay, devoid of evidentiary value, and insufficient to support entry of a default judgment. ( Joosten v. Gale , 129 AD2d 531 [1st Dept 1987] ; Beltre , 32 AD3d 22.) Moreover, within the confines of a medical malpractice action, generally an affidavit of merit from an expert is required unless the matters are within the ordinary experience and knowledge of a lay person. ( Fiore v. Galang , 64 NY2d 999 [1985] ; Nutting v. Associates , 130 AD2d 870 [3rd Dept 1987].) A review of the complaint annexed to plaintiff's motion reveals that it alleges dental malpractice in very general, conclusory and "boilerplate" language, except for the following statement: "defendants ... were negligent ... in treating plaintiff with implants, dentures and bridges in an incorrect, inadequate and unskillful manner." The complaint is devoid of any dates, and seems to suggest that plaintiff received all three procedures (implants, dentures and bridges), but does not elaborate upon the alleged negligent conduct. In addition, the complaint is only verified by plaintiff's attorney, and there is no affidavit by the plaintiff annexed to the motion so as to supply the necessary details regarding the merits of plaintiff's claim.
Included in the opposition to defendants cross motion is an affidavit by plaintiff in which she alleges that she received "extensive implant-based restoration" from defendants in the Bronx and Westchester from 2011 through August 23, 2017, to "remedy the problems [she] believe were created by" defendants. These alleged dates and locations for treatment would appear to defeat the statute of limitations ( CPLR 3211(a)(5) ) and change of venue ( CPLR § 510(1) ) claims made in defendants' cross-motion. In addition, the plaintiff goes on to allege later in her affidavit that the "treatment [was] related to [her] TMJ problems." Assuming that plaintiff's TMJ problem actually refers to temporomandibular joint dysfunction, an expert affirmation must be provided in order to establish the causal link between the implants and TMJ. ( Fiore , 64 NY2d 999 ; Nutting , 130 AD2d 870.) Given the aforementioned, neither side has established an entitlement to the relief requested at this time.
In addition, the Court hereby exercises its discretion and deems the affidavits of service timely filed, sua sponte. ( CPLR § 2004.) Obviously in granting this relief, the Court must do so on such terms as may be just, and only where a party's substantial right is not prejudiced. ( CPLR 2001 ; First , 164 AD3d 758.) Therefore, defendants are afforded an additional 30 days to appear and answer after service upon them of a copy of this decision/order ( CPLR 320(a) ; Buist v. Bromley , 151 AD3d 682 [2nd Dept 2017] ).
Based on the aforementioned, both the motion and cross-motion are denied without prejudice to seeking the same relief at a later date. Plaintiff is directed to serve a copy of this decision/order with notice of entry by first class mail upon defendants within 30 days of receipt of copy of same. This constitutes the decision and order of this court.