Opinion
Index No. 805413/2021 Motion Seq. No. 002
10-03-2022
TAHISHA JENKINS and DANIEL HILTON-ALLEN, Plaintiff, v. JEFFREY A. MAZLIN, M.D., GAIL A. STEPHEN-JOHNSON, M.D., PAULINA GUTA, M.D., GARDEN OB/GYN, BETHPAGE MEDICAL PLLC, GARDEN CITY PLAZA OFFICE BASED SURGERY, P.C., MICHAEL TERRANI, M.D., FACOG, and MICHAEL TERRANI, M.D., P.C., Defendants.
Unpublished Opinion
MOTION DATE 08/10/2022
PRESENT: HON. JOHN J. KELLEY JUSTICE
DECISION + ORDER ON MOTION
John J. Kelley, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 002) 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 were read on this motion to/for JUDGMENT - DEFAULT.
In this action to recover damages for medical malpractice, the plaintiffs move pursuant to CPLR 3215(a) for leave to enter a default judgment on the issue of liability against the defendants Garden City Plaza Office Based Surgery, P.C. (Garden City), Michael Terrani, M.D., FACOG, and Michael Terrani, M.D., P.C. (the Terrani P.C.). Those defendants do not oppose the motion. The motion is granted, and the matter is set down for an inquest on the issue of damages, to be held concurrently with the trial against the remaining defendants who have answered the complaint or appeared in this action.
Where a plaintiff moves for leave to enter a default judgment, he or she must submit proof that the summons and complaint properly was served upon the defaulting defendant, proof of the defendant's default, and proof of the facts constituting the claim (see CPLR 3215[f]; Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003]; Gray v Doyle, 170 A.D.3d 969, 971 [2d Dept 2019]; Rivera v Correction Officer L. Banks, 135 A.D.3d 621 [1st Dept 2016]; Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 A.D.3d 649 [2d Dept 2011]; Allstate Ins. Co. v Austin, 48 A.D.3d 720, 720 [2d Dept 2008]; see also Manhattan Telecom. Corp. v H &A Locksmith, Inc., 21 N.Y.3d 200 [2013]).
The plaintiffs commenced this action on December 22, 2021 by filing a summons and complaint (see CPLR 304[a]).
On December 30, 2022, the plaintiffs attempted to serve Garden City by delivering copies of the summons and complaint at Garden City's offices to Katherine Frankowski Zimm, who purportedly held herself out to be the chief financial officer of that professional corporation. If that service were proper, Garden City would have had 20 days to answer, appear, or move with respect to the complaint, or, if that date fell on a weekend, would have had until the first business day thereafter (see CPLR 320[a]; 3012[a]; General Construction Law §§ 20, 25-a). Hence, Garden City would have been required to answer, appear, or move on or before January 13. 2022. In any event, on January 3, 2022, the plaintiffs served Garden City with process by delivering two copies of the summons and complaint and paying the appropriate fee to the Secretary of State in Albany (see CPLR 311[a][1]; Business Corporation Law § 306). The plaintiffs thus have established that Garden City was properly served with process. Hence, even if Zimm is disqualified from being an officer of that professional corporation because she is not a physician (see Business Corporation Law § 1508[a]), and delivery to her thus was ineffective, Garden City nonetheless had 30 days from January 3, 2022 (see CPLR 320[a], 3012[c]), or until February 2, 2022, to answer, move, or otherwise appear.
On December 30, 2022, the plaintiffs attempted to serve the Terrani P.C. by delivering copies of the summons and complaint at the Terrani P.C.'s offices to a receptionist named Sasha M., who purportedly was authorized to accept service on that corporation's behalf. The affidavit of service referable to this attempt, however, does not identify Sasha M. as an officer, director, managing or general agent, cashier, or assistant cashier of the corporation, or as an agent expressly appointed by the corporation to accept service of process (see CPLR 311[a][1]). Nonetheless, on January 3, 2022, the plaintiffs served the Terrani P.C. with process by delivering two copies of the summons and complaint and paying the appropriate fee to the Secretary of State in Albany (see id.; Business Corporation Law § 306). The plaintiffs thus have established that they properly served the Terrani P.C. with process, and that it was required to answer, appear, or move with respect to the complaint on or before February 2, 2022.
On December 30, 2022, the plaintiffs served Terrani, in his individual capacity, at his office by delivering a copy of the summons and complaint to Zimm, who purportedly held herself out as having authority to accept process on Terrani's behalf. The plaintiffs filed the affidavit of service with respect thereto on January 6, 2022. Although the plaintiffs filed an affidavit of service on February 15, 2022 indicating that, on February 3, 2022, they served Terrani's professional corporation by delivering a copy of the summons and complaint at Terrani's residence to Terrani's 18-year-old daughter, and followed up with a mailing to that residence on February 11, 2022, the affidavit of service apparently was meant to describe service pursuant to CPLR 308(2) upon Terrani, in his individual capacity, and not service upon his corporation.
If, in fact, Zimm were authorized to accept service of process on behalf of Terrani, individually (see Cellino & Barnes, P.C. v Martin, Lister &Alvarez, PLLC, 117 A.D.3d 1459, 1460 [4th Dept 2014]; see also Fashion Page v Zurich Ins. Co., 50 N.Y.2d 265, 273 [1980] [process server's reasonable belief of recipient's authority is the crucial factor]; Passeri v Tomlins, 141 A.D.3d 816, 818, n [3d Dept 2016]; Arvanitis v Bankers Trust Co., 286 A.D.2d 273, 273 [1st Dept 2001]), he would have had to answer, appear, or move with respect to the complaint on or before January 29, 2022. If that service were not effective, the court nonetheless concludes that the deliver-and-mail service effectuated on February 3, 2022 and February 11, 2022 was, in fact, sufficient to obtain jurisdiction over Terrani pursuant to CPLR 308(2). Service was thus "completed" within the meaning of that statute on February 22, 2022, or the first business day following the 10-day period subsequent to the filing of proof of service, and Terrani had 30 days from February 22, 2022 (see CPLR 320[a]), or until March 24, 2022, to answer, appear, or move with respect to the complaint.
The affirmation of the plaintiffs' attorney established that, regardless of which date or dates Garden City, the Terrani, P.C., or Terrani were obligated to answer, appear, or move with respect to the complaint, these three defendants were in default, as none of them did so within any of the time limits described above, and, in fact, none has yet answered, appeared, or moved with respect to the complaint. In addition, with respect to the service made upon Garden City and the Terrani, P.C. by delivery to the Secretary of State, the plaintiffs' attorney has satisfied the requirements of CPLR 3215(g)(4)(i) by submitting proof that he timely made an additional mailing of the summons to the last known addresses of those corporations.
With respect to the proof of the facts constituting the claim,
"CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action (see, 4 Weinstein-Korn-Miller, NY Civ Prac paras. 3215.22-3215.27). The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts"(Joosten v Gale, 129 A.D.2d 531, 535 [1st Dept 1987]; see Martinez v Reiner, 104 A.D.3d 477, 478 [1st Dept 2013]; Beltre v Babu, 32 A.D.3d 722, 723 [1st Dept 2006]). Stated another way, while the "quantum of proof necessary to support an application for a default judgment is not exacting . . . some firsthand confirmation of the facts forming the basis of the claim must be proffered" (Guzetti v City of New York, 32 A.D.3d 234, 236 [1st Dept 2006]). In other words, the proof submitted must establish a prima facie case (see id.; Silberstein v Presbyterian Hosp., 95 A.D.2d 773 [2d Dept 1983]).
"Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" (Green v Dolphy Constr. Co., 187 A.D.2d 635, 636 [2d Dept 1992]; see Walley v Leatherstocking Healthcare, LLC, 79 A.D.3d 1236, 1238 [3d Dept 2010]). In moving for leave to enter a default judgment, the plaintiff must "state a viable cause of action" (Fappiano v City of New York, 5 A.D.3d 627, 628 [2d Dept 2004]). In evaluating whether the plaintiff has fulfilled this obligation, the defendant, as the defaulting party, is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71 [2003]). The court, however, must still reach the legal conclusion that those factual allegations establish a prima facie case (see Matter of Dyno v Rose, 260 A.D.2d 694, 698 [3d Dept 1999]).
Proof that the plaintiff has submitted "enough facts to enable [the] court to determine that a viable" cause of action exists (Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; see Gray v Doyle, 170 A.D.3d at 971) may be established by an affidavit of a party or someone with knowledge, authenticated documentary proof, or by complaint verified by the plaintiff that sufficiently details the facts and the basis for the defendant's liability (see CPLR 105[u]; Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; Gray v Doyle, 170 A.D.3d at 971; Voelker v Bodum USA, Inc., 149 A.D.3d 587, 587 [1st Dept 2017]; Al Fayed v Barak, 39 A.D.3d 371, 371 [1st Dept 2007]; see also Michael v Atlas Restoration Corp., 159 A.D.3d 980, 982 [2d Dept 2018]; Zino v Joab Taxi, Inc., 20 A.D.3d 521, 522 [2d Dept 2005]; see generally Mitrani Plasterers Co., Inc. v SCG Contr. Corp., 97 A.D.3d 552, 553 [2d Dept 2012]).
In the context of a medical malpractice action, generally an affidavit or affirmation of merit from an expert is required unless the matters alleged are within the ordinary experience and knowledge of a lay person (see Fiore v Galang, 64 N.Y.2d 999, 1000-1001 [1985]; Checo v Mwando, 2022 NY Slip Op 31223[U], 2022 NY Misc. LEXIS 1865 [Sup Ct, N.Y. County, Apr. 7, 2022] [Kelley, J.]; Charles v Wolfson, 2019 NY Slip Op 50251[U], 62 Misc.3d 1224[A] [Sup Ct, Bronx County, Mar 6, 2019]). Here, the crux of the plaintiffs' claim, as set forth in the affidavit of merit of the plaintiff Tahisha Jenkins, is that
"[o]n June 6, 2020 I was admitted to the maternity department at Good Samaritan Hospital located at 1000 Montauk Highway, West Islip, New York because I was in labor. When it was time to deliver my baby, it was discovered that cerclage stitching that had previously been placed was not properly, completely removed by the defendants."
She asserted in her affidavit that, as a consequence, she was compelled to undergo an otherwise unnecessary Cesarean section surgery. More importantly, she asserted that she was forced to undergo an additional surgery to remove the cerclage stitching. Although a medical expert might very well be needed to establish that the failure fully to remove the stitching was the reason for the Cesarean section surgery, a lay person can easily understand that letting a portion of a foreign object remain in patient's body after an unsuccessful attempt to remove it was made constitutes malpractice. A lay person can also understand why a patient would have to undergo otherwise unnecessary surgery where the object was not fully removed in the first instance. Hence, Jenkins's affidavit of merit is sufficient here to support her claims against Garden City, the Terrani P.C., and Terrani, but only to the extent that she is entitled to an inquest to assess damages in connection with the surgery to remove the cerclage stitching.
In light of the foregoing, it is
ORDERED that the plaintiffs' motion for leave to enter a default judgment on the issue of liability against the defendants Garden City Plaza Office Based Surgery, P.C., Michael Terrani, M.D., FACOG, and Michael Terrani, M.D., P.C., is granted, without opposition, and the matter is set down for an inquest to assess damages against those defendants solely in connection with those damages arising from the surgery to remove cerclage stitching, to be held concurrently with the trial against the remaining defendants who have answered the complaint or appeared in the action.
This constitutes the Decision and Order of the court.