Plaintiff commenced an action for medical malpractice against the above-named Defendants regarding medical treatment received by Plaintiff on February 18, 2001, at Urgent Medical Care of Skaneateles and at Auburn Memorial Hospital, concluding on May 23, 2001.

To commence the action, Plaintiff filed a Summons with Notice on August 14, 2003, and served said pleading on the Defendants. All Defendants served Plaintiff with a Notice of Appearance and Demand for Complaint, and on January 28, 2004, Plaintiff served upon Defendants' counsel the Complaint in this action. Thereafter, an Answer was interposed on [*2]behalf of all Defendants on or about February 6, 2004, asserting the affirmative defense of lack of personal jurisdiction. Subsequently, Defendants MARK J. COHEN, M.D., MARC P. PIETROPAOLI, M.D., MARC P. PIETROPAOLI, M.D., P.C., AND VICTORY SPORTS MEDICINE AND ORTHOPEDICS (hereinafter COHEN, M.D.; PIETROPAOLI, M.D., PIETROPAOLI, M.D., P.C.; AND VICTORY, respectively) timely moved to dismiss Plaintiff's complaint for failure to serve process prior to the expiration of the statute of limitations. Plaintiff cross-moved for an order approving the filing of the affidavits of service nunc pro tunc, ordering a Traverse hearing and striking the Defendants' affirmative defense of lack of personal jurisdiction. Thereafter, by separate motion, Plaintiff moved for an order allowing an extension of time to serve the moving Defendants.

After hearing oral arguments concerning these motions, the Court ordered and conducted a Traverse hearing concerning the issue of service of process upon the moving Defendants. At the hearing, sworn testimony was given by the Defendants COHEN, M.D. and PIETROPAOLI, M.D., as well as JAMES HANMER, the process server, ANDREW MARTIN, an employee of Associated Services, the process serving company, and DAVID MARTIN, the owner of Associated Services.

Upon hearing the testimony of these witnesses, there is no question that the moving Defendants were not properly served with process in this matter. Defendants COHEN, M.D. and PIETROPAOLI, M.D. both testified that they were never personally served with the Summons with Notice, which type of service would have complied with CPLR 308(1). They further testified that they never received by mail a copy of said Summons with Notice at either their residence or place of business in compliance with CPLR 308(2), despite what has been set forth in the affidavits of service received into evidence as Exhibits 3, 4, 6, 9, 10 and 12.

The process server, JAMES HANMER, who appeared at the hearing accompanied by his attorney, JAMES K. WEEKS, ESQ., testified that while he was employed by Associated Services, he never signed an Affidavit of Service. He also testified that, except for one matter involving an eviction proceeding, he never mailed a copy of any pleadings to a named Defendant whom he had served by substituted service. MR. HANMER, testified that the signatures purporting to be his signatures on any Affidavit of Service entered into evidence as exhibits in this hearing, were, in fact, not his signatures, as he never signed these Affidavits of Service. According to his testimony, he was never trained as to the requirement of mailing a copy of the pleadings in situations involving substitute service and did no such mailing of the pleadings in this case. This witness also testified to a conversation with DAVID MARTIN, the owner of Associated Services, wherein he was told by MR. MARTIN that he had to tell attorney BIRNBAUM that it was his (HANMER'S) signature on the Affidavits of Service and if he did not, "all his services would be for naught." He told MR. MARTIN that it was not his signature and MR. MARTIN replied that it was. MR. HANMER left the employ of Associated Services shortly thereafter.

ANDREW MARTIN, who appeared at this hearing accompanied by his attorney WILLIAM W. ROSE, ESQ., testified that he works for Associated Services, a proprietorship owned by his father, DAVID MARTIN. This witness testified that in his position he administers the out-of-town services and is not responsible for mailing copies of pleadings when there is substitute service. He stated that he was a Notary Public on November 24, 2003. [*3]ANDREW MARTIN further testified that he knew an Affidavit of Service was not complete without the signature of the process server; that the purpose of notarizing a signature was also to witness the signature; and that it is a legal requirement that the signature be accomplished in the presence of the Notary. According to MR. MARTIN, the process servers are given the papers to be served with a worksheet. Once the service is done, the process server returns the worksheet to their office to verify service. Any mailing of papers is done either by the secretary in the office or DAVID MARTIN.

In response to any questions by the attorneys or the Court as to: whether or not he was familiar with MR. HANMER's signature; whether or not MR. HANMER signed Affidavits of Service admitted as Exhibits in this hearing; whether or not his signature appeared above his typed name on said Exhibits as Notary Public; whether or not he saw the purported signature of MR. HANMER on these Affidavits of Service; whether or not the process servers at Associated Services are trained to complete an Affidavit of Service; whether or not the process servers are generally required to execute an Affidavit of Service; whether or not MR. HANMER authorized anyone to sign his name; and whether or not he ever saw MR. HANMER'S signature on anything, MR. MARTIN stated that on the advice of his attorney he would invoke his 5th Amendment right against self incrimination and refused to answer. While such an invocation may be sufficient in a criminal matter to ward off any negative inference, such is not the situation in a civil matter. MARINE MIDLAND BANK V. RUSSO PRODUCE CO., INC., 50 NY2d 31(1980); CROWDER V. WELLS & WELLS EQUIPMENT, INC., 2004 NY Slip Op. 07590 (1st Dept., October 21, 2004)

DAVID MARTIN, the owner of Associated Services, who appeared at this hearing accompanied by his attorney WILLIAM W. ROSE, ESQ., testified as to his company's procedures regarding service of process after the process server has effected service. According to this witness, the process server drops off the worksheet; the clerical staff inputs the information into the database; and the staff prepares the Affidavit of Service and does the mailing. However, DAVID MARTIN stated that, on the advice of counsel, he would invoke his rights under the 5th Amendment and refused to answer when asked to identify at what point during this procedure the process server actually signs the Affidavit of Service.

Although he testified that he sent a bill for the service of process in this case to attorney BIRNBAUM, DAVID MARTIN could not specifically state that the mailing requirement of substitute service was completed in this matter. This was the gist of his testimony, other than the repeated invocation of his 5th Amendment right to refuse to testify on the grounds that such testimony might tend to incriminate him. This witness invoked this right when asked if it was his practice to always have his process servers sign an Affidavit of Service; if he recognized any of the signatures on Exhibits 1,3,5,6 and 10; if JAMES HANMER in conjunction with this case was presented with an Affidavit of Service to sign; and if he recognized the signature of ANDREW MARTIN as Notary on said Exhibits.

As with the testimony of ANDREW MARTIN, the Court draws a negative inference from the testimony of DAVID MARTIN. See: MARINE MIDLAND BANK v. RUSSO, supra.

Based on the record before the Court and the inferences allowed to be drawn therefrom, this Court finds that none of the moving Defendants were properly served with the Summons [*4]with Notice. There is no question that the individual Defendants COHEN, M.D. and PIETROPAOLI, M.D., were not personally served and substitute service was not complete as there was no mailing in accordance with the statute.

As to Defendant VICTORY, it does not appear that this entity is a corporation insofar as the letterhead contained in Exhibit 7 does not set forth any corporate identity. Rather, VICTORY is a d/b/a of Defendant PIETROPAOLI, M.D. and, as such, service must be completed as set forth in CPLR Section 308. There is no indication that the process server actually handed the pleadings to a "Jane Doe" identified as the office manager, when he attempted service on Defendant VICTORY. Contrary to what is set forth in the Affidavits of Service admitted as Exhibits 5 and 13, MR. HANMER testified that he did not hand the pleadings to "Jane Doe," but rather placed them on a desk in the reception area and no one was present. Furthermore, there was no subsequent mailing to complete this substitute service.

As to Defendant PIETROPAOLI, M.D., P.C., no mailing would have been required if "Jane Doe" was a managing agent or person authorized to accept service, or any other individual described in CPLR Section 311(a)(1). However, she was not and, according to MR. HANMER's testimony, she specifically told him that she could not accept service and he should return at another time to personally serve Defendant, PIETROPAOLI, M.D., P.C.. Her actions do not appear to be an attempt to avoid service, but merely an attempt to inform the process server that she did not have authority to accept service. MR. HANMER testified that when he returned, he did not hand the pleading to anyone, but rather merely left same on the receptionist's desk. This is not valid service under any statutory authority.

Therefore, by reason of the foregoing, and based on the record as a whole Plaintiff's action against these moving Defendants should be dismissed for lack of personal jurisdiction. However, further analysis is required by the Court due to the uniqueness of this entire situation.

As to Plaintiff's Motion to extend the time for service, the Court must examine the particular and unique circumstances of this matter. The Court, mindful that the statutes of limitation have now expired as to the moving Defendants (August 18, 2003 regarding Defendant COHEN, M.D., and November 23, 2003 as to the other Defendants), must now consider a number of factors in order to determine whether or not to extend Plaintiff's time to serve these Defendants for good cause shown or in the interests of justice pursuant to CPLR Section 306-b.

The Court has considered the diligence of Plaintiff, or the lack thereof, in serving and prosecuting her claim; the expiration of the statute of limitations; the meritorious nature 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 Defendants in balancing the competing interests of the parties. LEADER v. MARONEY, PONZINI AND SPENCER, 97 NY2d 95 (2001).

The fact that Plaintiff's action was not commenced until the statute of limitations almost expired does not reflect on the merits of her action. Plaintiff's counsel did, in fact, submit a Certificate of Merit.

Moreover, it cannot be maintained that Plaintiff was not diligent in her efforts to effectuate service. The pleadings were presented to Associated Services, an entity that held itself out as a professional process serving business. Affidavits of Service were sent by Associated Services to Plaintiff's counsel indicating all Defendants in the captioned action were served in accordance with the CPLR. Plaintiff's counsel had no reason not to rely on the affidavits [*5]submitted to him and the company was paid for its "services." Upon Defendants' motion to dismiss for lack of jurisdiction due to inadequate service, Plaintiff diligently moved to correct same by moving this Court for an extension of the time to serve, and by investigating the particulars of service directly with the process server and his employer, Associated Service.

The Court does not find that the moving Defendants have been prejudiced by these circumstances. There are multiple Defendants in this action and all other Defendants have been served and have appeared and answered. The answering Defendants are in some form or fashion employed by and/or affiliated with these other non-moving Defendants. Furthermore, all Defendants (not merely these moving Defendants) are represented by the same law firm.

Plaintiff has shown good cause as to how and why proper service was not perfected. Also, through absolutely no fault of their own, both Plaintiff and her attorney were duped by the fraudulent and deceptive conduct of Associated Services (not the individual conduct of process server JAMES HANMER). The interests of justice require and dictate that Plaintiff not be punished by this deplorable, unprofessional and possibly criminal conduct on the part of Associated Services. PALLADINO v. SARGENT, et al., 6 AD 3rd 1082 (4th Dept., 2004).

In addition, notwithstanding the running of the statute of limitations, where an action has been properly commenced, as the instant action has been, Plaintiff would have, as a matter of right, the ability to recommence her action within 120 days of any dismissal for lack of personal jurisdiction. DAVIDSON V. PUBLIC ADMINISTRATOR FOR ESTATE OF RANIOLO, 283 AD2d 538 (2nd Dept., 2001). Dismissing Plaintiff's action would only give rise to its recommencement against these moving Defendants.

Therefore, by reason of the foregoing, based on the record as a whole and in the interest of judicial economy, Defendants' motion to dismiss is hereby DENIED, and Plaintiff's Motion to extend the time of service is hereby GRANTED for good cause shown and in the interests of justice; AND IT IS SO ORDERED.

To further promote judicial economy and to avoid further inconvenience to all parties, the Court hereby directs Plaintiff to serve the moving Defendants by delivering the Summons and Complaint in this action to Defendants' attorneys within twenty (20) days of the filing and entry of this DECISION AND ORDER, and to file proof of service of same with the Clerk of the Court within ten (10) days thereafter; AND IT IS SO ORDERED.

The Court further directs that Defendants' attorneys accept service of said Summons and Complaint; AND IT IS SO ORDERED.

In light of the foregoing, the Plaintiff's Cross-Motion for an order approving the filing of the affidavits of service nunc pro tunc and for dismissal of the Defendants' affirmative defense of lack of personal jurisdiction is DENIED AS MOOT; AND IT IS SO ORDERED.

Finally, in view of the credible testimony of JAMES HANMER and the negative inferences drawn from the testimony of DAVID and ANDREW MARTIN concerning their conduct in conjunction with the service of process in this matter, which may constitute violations of the New York State Penal Law, the Court has ordered a transcript of their testimony and shall forthwith forward same to the Onondaga County District Attorney with a request that his office commence a formal investigation into any possible criminal conduct on the part of ANDREW MARTIN and/or DAVID MARTIN.

ENTER [*6]

ANTHONY J. PARIS

J.S.C.

Dated: November , 2004

Syracuse, New York