Opinion
No. 601984/2019 Mot Seq. Nos. 001002003004
02-25-2020
ADAN RAMOS, Plaintiff, v. FERNANDO CHECHO, M.D., SACHIN SHAH, M.D., THE CENTRAL ORTHOPEDIC GROUP, LLP, JONATHON LENTZ, D.O., GEORGE XIPOLEAS, M.D., NORTHWELL HEALTH PLAINVIEW HOSPITAL, Defendants.
Unpublished Opinion
Present: Hon. Sharon M.J. Gianelli, J.S.C.
Sharon M.J. Gianelli, Judge
Papers submitted on this motion:
Mot. Seq. 001
Defendant Fernando Checho, M.D. and The Central Orthopedic Group, LLP's
Motion and Affirmation in support to Dismiss Plaintiffs Summons___X
Mot. Seq. 002
Defendant George Xipoleas, M.D.'s
Motion and Affirmation in support to Dismiss Plaintiffs Summons___X
Mot. Seq. 003
Defendant Jonathon Lentz, D.O. and Northwell Health Plainview Hospital's (Plainview Hospital s/h/a Northwell Health Plainview Hospital)
Motion and Affirmation in support to Dismiss Plaintiffs Summons___X
Mot. Seq. 004
Defendant Sachin Shah, M.D.'s
Motion and Affirmation in support to Dismiss Plaintiffs Summons___X
Defendants individually move for an Order dismissing Plaintiffs Summons with Notice due to Plaintiffs failure to serve a Complaint within the applicable time period provided for such a pleading.
Underlying Facts
This is an action brought by Plaintiff, via the filing of a Summons with Notice on February 9, 2019 for negligence and/or medical malpractice.
Mot. Seq. 001
Defendants Fernando Checho, M.D. and The Central Orthopedic Group, LLP allege that on May 30, 2019, Plaintiff served a Summons with Notice on Defendants, service having been completed on May 31, 2019.
Defendant Fernando Checho, M.D. and The Central Orthopedic Group, LLP allege that on June 10, 2019, a Demand for a Complaint pursuant to CPLR §3012(b) was served via NYSCEF with the Nassau County Clerk.
Pursuant to CPLR §3012(b) plaintiff was to have served the Complaint no later than July 1, 2019. To date Defendants have not received the Complaint.
Mot. Seq. 002
Defendant George Xipoleas, M.D. alleges that on February 9, 2019, Plaintiff purchased an index number and filed a Summons with Notice with the Nassau County Clerk via e-filing. On May 28, 2019, Plaintiff served a Summons with Notice on Defendant, George Xipoleas, M.D.
On June 4, 2019, Defendant George Xipoleas, M.D. served a Demand for a Complaint pursuant to CPLR §3012(0) along with a Statement of Authorization for Electronic Filing, with the Nassau County Clerk.
Pursuant to CPLR §3012(0) Plaintiff was to have served the Complaint no later than June 24, 2019. To date Defendant George Xipoleas, M.D. has not received the Complaint.
Mot. Seq. 003
Defendant Jonathon Lentz, D.O. and Northwell Health Plainview Hospital (Plainview Hospital s/h/a Northwell Health Plainview Hospital) alleges this action was commenced by Plaintiffs counsel with the electronic filing of a Summons with Notice with the Nassau County Clerk's Office on February 9, 2019.
In response to the Summons with Notice, a Notice of Appearance and Demand for a Complaint was served on behalf of Defendant, Northwell Health Plainview Hospital's (Plainview Hospital s/h/a Northwell Health Plainview Hospital), on June 20, 2019.
Based on the date the Notice of Appearance and Demand for a Complaint was served, Plaintiff had until July 10, 2019 to timely serve a Complaint as to Defendant Northwell Health Plainview Hospital (Plainview Hospital s/h/a Northwell Health Plainview Hospital). Said Defendant alleges that Plaintiff failed to do so.
Mot. Seq. 004
Defendant Sachin Shah, M.D. alleges that on February 9, 2019, Plaintiff purchased an Index number and e-filed a Summons with Notice. Thereafter, on May 29, 2019, Plaintiff served the Summons with Notice on said Defendant.
On July 8, 2019, Defendant, Sachin Shah, M.D.'s office served a Demand for Complaint and e-filed same with the Court. Said Defendant, alleges that to date, Plaintiff has failed to serve a Complaint within the time period prescribed by CPLR 3012(b).
Analysis
CPLR §3012(b) states in pertinent part "...Service of the complaint shall be made within twenty days after service of the demand... The Court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision."
It is clear that Plaintiff has failed to comply with the mandates of CPRL §3012(b) which would have required the service of a Complaint in excess of six (6) months ago, despite ample opportunity to do so. Plaintiff has not filed an Affirmation in Opposition to any of the motions filed individually by the named Defendants in this action.
Accordingly, it is
ORDERED, that Defendants Fernando Checho, M.D. and The Central Orthopedic Group, LLP's Motion for an Order dismissing Plaintiffs Summons with Notice is Granted; and
it is
ORDERED, that Defendant George Xipoleas, M.D.'s Motion for an Order dismissing Plaintiffs Summons with Notice is Granted; and
it is
ORDERED, that Defendant Jonathon Lentz, D.O. and Northwell Health Plainview Hospital's (Plainview Hospital s/h/a Northwell Health Plainview Hospital) Motion for an Order dismissing Plaintiffs action due to Plaintiffs failure to serve a complaint upon the moving Defendants within the applicable time period provided for such a pleading is Granted; and
it is
ORDERED, that Defendant Sachin Shah, M.D.'s Motion for an Order dismissing the Plaintiffs action due to Plaintiff s failure to serve a Complaint upon the moving Defendant within the applicable time period provided for such a pleading is Granted;
All applications not specifically addressed herein are denied.
The forgoing constitutes the decision and order of the Court.