Opinion
06-1411.
Decided on September 13, 2007.
The Mills Law Firm, LLP, Clifton Park, New York, for plaintiff.
Maynard, O'Connor, Smith Catalinotto, LLP, Albany, New York, for defendant, Gary E. Pearlstein, M.D.
Defendant Gary E. Pearlstein, M.D. moves to dismiss the action as to him for lack of personal jurisdiction. Plaintiff cross-moves for an order extending the time within which to permit service or in the alternative ordering a traverse hearing to determine the issue of service.
The action was commenced by filing of the summons with notice on November 17, 2006. Pursuant to CPLR 306-b, service upon defendants was to have been made within 120 days thereafter, or by March 17, 2007.
On March 5, 2007, service was attempted. The affidavit dated August 21, 2007 of Frank Margan, plaintiff's process server, states that on March 5, 2007 he traveled to Hudson to serve both defendant Pearlstein and defendant Columbia Memorial Hospital. Plaintiff's counsel had instructed Margan that defendant Pearlstein maintained an office at Hudson Valley Surgical Associates at 751, Warren Street, Hudson, New York. Margan went first to 751 Warren Street, where there was a sign indicating it was the location of Hudson Valley Surgical Associates and that defendant maintained an office at that location. He found the building empty, and was informed by an individual that Hudson Valley Surgical Associates had moved their office across the street to Columbia Memorial Hospital, at the address of 71 Prospect Avenue. Margan went to the hospital's Risk Management Department and there served defendant Columbia Memorial Hospital, but was told that defendant Pearlstein maintained an office in the hospital as an employee of the hospital, and that Margan would have to go to Pearlstein's office to serve him individually.
At defendant's office in the hospital, Margan was told by a woman identifying herself as office manager that she would not accept service, that Pearlstein was an "employee of the hospital", and that Margan would have to go the Human Resources Department in order to serve Pearlstein. At the Human Resources Department he spoke to a woman named Janet Reetz. After making a phone call, Reetz informed Margan she was authorized as "Vice President of Human Resources" to accept service on behalf of Dr. Pearlstein, and she accepted the summons with notice. Believing that service was complete, Margan attempted no follow up mailing of process, and he prepared an affidavit of service for the summons with notice, mistakenly designating the venue as Columbia instead of Greene County.
The affidavit of service of Frank J. Margan dated March 5, 2007 (Exhibit B attached to Affidavit of Fawn A. Arnold, Esq., August 7, 2007) is encaptioned "County of Columbia", and it states that on March 5, 2007 at the Columbia Memorial hospital Human Resources Office, Prospect Street, Hudson, New York, he served the summons with notice upon Janet Reetz as "Vice President of Human Resources", who "identified herself as the person designated to accept service of process for "Employee, Dr. Gary E. Pearlstein", and that she accepted service "without incident" as "a person of suitable age and discretion."
The affidavit of August 21, 2007 of Gregory S. Mills, Esq., of plaintiff's counsel, states that a paralegal from his office received and initially filed Margan's affidavit of service with the Columbia County Clerk. On April 20, 2007 the paralegal called the Columbia County Clerk and faxed a letter requesting return of the original affidavit so that it could be refiled with the Greene County Clerk, which was accomplished on April 26, 2007.
On May 4, 2007, not having heard from Dr. Pearlstein, Mills wrote to Pearlstein indicating that he was in default in appearing in the action. (Apparently, no copy of the summons with notice was included with this letter.) A few days later, Mills received a call from attorney Bruce Bell of defendant's counsel, indicating that Dr. Pearlstein had received the letter and would be appearing shortly. On May 15, 2007 Mills spoke over the phone with attorney Chris Dressler of defendant's counsel, who requested a two week extension to serve an answer, and who indicated that Janet Reetz was "not authorized to accept service of process on behalf of Dr. Pearlstein." Dressler orally and subsequently in writing reserved defendant's right to assert lack of personal jurisdiction (see Letter of May 15, 2007, Dressler to Mills, Exhibit F to Mills' Affidavit).
On May 29, 2007 counsel for Dr. Pearlstein served a notice of appearance and demand for a complaint. The complaint was served on April 13, 2007; defendant answered on June 15, 2007, asserting the defense of lack of personal jurisdiction. The instant motions followed.
The affidavit of defendant Gary E. Pearlstein, M.D. dated August 3, 2007 states that he has never been served with or seen a summons with notice in this action, nor has he ever received the summons with notice by first class mail at his actual place of employment, dwelling place or usual place of abode. He states that "has been employed at Columbia Memorial Hospital" and has "maintained an office there", however he adds that he was "never employed at and/or conducted business at the Human Resource Office of the Columbia Memorial Hospital, Prospect Street, Hudson, New York." He further states that he has never designated anyone, in particular Janet Reetz, at Columbia Memorial Hospital his authorized agent to accept service of process on his behalf, and he has never received a copy of the summons with notice from her.
At issue in this case are the requirements for service of process upon a natural person, which are set forth in CPLR 308.
It is undisputed that there was no actual service upon defendant in person. And, delivery of a summons to another person on behalf of a defendant doctor is ineffective under CPLR 308, irrespective of whether there is an express representation by such person of authority to accept such service ( Dorfman v Leidner, 76 NY2d 956). Thus, CPLR 308 is not at issue in this case.
It is also undisputed that plaintiff does not attempt to rely upon service having been made upon a person expressly designated by defendant as an agent for service of process pursuant to CPLR 308.
Alternatively to personal or substituted service, service on a natural person may be made "by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318", the latter rule providing that a person may designate another person as an agent for service "in a writing, executed and acknowledged in the same manner as a deed, with the consent of the agent endorsed thereon", which shall be filed in the office of the clerk of the county in which the principal to be served resides or has its principal office (CPLR 308[3]). No claim is asserted that the person here served, Janet Reetz, was such an authorized agent.
Rather, plaintiff argues that service was effective, if at all, under CPLR 308.
Pursuant to CPLR 308 service upon a natural person may be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business . . . 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, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service. . . ." (CPLR 308).
Under the facts of this case, effective service under this section is comprised of three elements: delivery to a person of suitable age and discretion at defendant's actual place of business, mailing within 20 days thereafter to the defendant at his last known residence or actual place of business, and filing of proof of service with the clerk of the court designated in the summons within 20 days after the later of such delivery or mailing.
Defendant's artfully drafted affidavit does not deny either that he was employed by defendant Columbia Memorial Hospital, or that he maintained an office there that was his actual place of business.
Having been directed to defendant's office within Columbia Memorial Hospital, and having conversed there with an individual identified as defendant's "office manager", plaintiff's process server would have been justified in concluding both that this office was defendant's "actual place of business" ( see Glasser v Keller, 149 Misc 2d 875) and that the "office manager" was a person of suitable age and discretion to whom the summons could effectively be delivered. However, no delivery to this person was made. Instead, plaintiff's process server delivered the summons to Janet Reetz at the Human Resources Department of the hospital. If otherwise effective service had been made upon this individual, it might then be relevant to determine whether defendant was in fact an employee of the hospital, whether the "Human Resources Department" was thus still an extended part of defendant's "actual place of business" ( see Kearney v Neurosurgeons of NY, 2006 NY Slip Op 5326, 31 AD3d 390 [2nd Dept 2006]; West v Doctor's Hosp., 198 AD2d 92), and whether Janet Reetz, although misidentified as "Vice President of Human Resources", was nonetheless a person of "suitable age and discretion" with whom the summons could effectively be left. However, no otherwise effective service was made upon Reetz.
Because plaintiff admits that no second copy of the summons was ever mailed to the defendant, there can be no dispute that plaintiff did not effectuate personal service upon defendant pursuant to the unambiguous requirements of CPLR 308 ( Caruso v Raju, 249 AD2d 256).
Finally, CPLR 308 requires that proof of "such service" (delivery and mailing) be timely filed with the clerk of the court designated in the summons. The affidavit of service filed in this case was insufficient, in that it evidenced delivery but not mailing, it designated and was filed with a clerk of a court other than that designated in the summons, and it was ultimately correctly filed only after the time to do so had expired.
Plaintiff seeks a traverse hearing to determine whether Dr. Pearlstein was an employee of the hospital at the time of the surgery, arguing that, if he was so employed, "then service on the Hospital would constitute service on its employee as well." No authority is cited to support this novel assertion. Additionally, plaintiff asserts it would be important to determine whether Janet Reetz actually delivered the summons with notice to Dr. Pearlstein within the statutory period. However, if a summons is delivered as required by CPLR 308(2) but not mailed, service is invalid even if it is conceded that the defendant received actual notice of the action ( Property Clerk, New York City Police Dep't v Mason, 145 Misc 2d 1059, 1062). In a challenge to service of process, the fact that a defendant has received prompt notice of the action is of no moment; notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court ( Macchia v Russo, 67 NY2d 592, 595).
No traverse hearing is called for; under the uncontroverted facts submitted to the Court, service upon defendant Pearlstein was defective.
By notice of cross motion, plaintiff seeks an order extending the time within which to permit service. Accordingly, the Court must examine the particular and unique circumstances of this matter, and consider whether or not to extend plaintiff's time to serve defendant pursuant to CPLR Section 306-b. Extension may be granted "for good cause shown" or "in the interests of justice." There is no dispute that no "good cause" exists for an extension. Factors considered in evaluating the "interests of justice" include the diligence of plaintiff, or lack thereof, in serving and prosecuting her claim; the status of the statute of limitations; the meritorious nature or lack thereof of plaintiff's claim; the length in the delay of service; the promptness of plaintiff's request for an extension of time; and the prejudice to defendant in balancing the competing interests of the parties ( Leader v Maroney, Ponzini and Spencer, 97 NY2d 95; see Beardsley v Cohen, 2004 NY Slip Op 51719U, 6 Misc 3d 1004A).
With respect to the issue of diligence, the numerous errors made in attempting to effectuate service are well set forth above. Any attempt by plaintiff's counsel to shift responsibility for these errors to their paralegal or process server is unavailing — the duty owed by an attorney to his or her client to exercise care in the service of process is nondelegable ( Kleeman v Rheingold, 81 NY2d 270). Only a single attempt at service was made, even after plaintiff's counsel became aware that there was a potential problem with personal jurisdiction. No application to extend the time for service was made, except in response to defendant's motion to dismiss.
With respect to the issue of the meritorious nature of plaintiff's case, it is noteworthy that notwithstanding a narrative description of the basis of the claim from plaintiff's counsel, no affidavit of merit from any person with knowledge or expertise concerning the allegations against Dr. Pearlstein is submitted on the motion.
The Court is mindful that the statute of limitation has now expired as to the moving defendant, however neither this factor nor the asserted lack of prejudice to defendant in the Court's opinion is determinative given the demonstrated lack of diligence in effecting service and the failure to establish the existence of a meritorious cause of action ( see Baione v Central Suffolk Hosp. , 14 AD3d 635).
For all of the foregoing reasons, the plaintiff's cross-motion is denied, the motion of defendant Pearlstein is granted, and the complaint as against defendant Gary E. Pearlstein, M.D. is hereby dismissed for lack of personal jurisdiction.
This is the Decision and Order of the Court. All papers are returned to counsel for defendant Pearlstein for filing and service. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section with regard to filing, entry and Notice of Entry.
SO ORDERED.