[*1]
Matter of Smith v Pons
2006 NY Slip Op 52643(U) [21 Misc 3d 1116(A)]
Decided on April 11, 2006
Supreme Court, Onondaga County
Carni, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 11, 2006
Supreme Court, Onondaga County


In the Matter of the Estate of Edward Smith, Plaintiff,

against

Paula Pons, M.D., UPSTATE SURGICAL GROUP, P.C., JONATHAN MARC JACOBS, M.D., ST. JOSEPH'S IMAGING ASSOCIATES, P.L.L.C., ST. JOSEPH'S HOSPITAL HEALTH CENTER, Defendants.




05-3892



Appearances:

For the Plaintiff:

Dadow & Huling

By: Elijah Huling, Jr., Esq.

Of Counsel

For Defendants:

Martin, Ganotis, Brown, Mould & Currie

By: Michael J. Cirincione, Esq.

Of Counsel for Pons and Upstate

Smith, Sovik, Kendrick & Sugnet

By: Michael P. Ringwood, Esq.

Of Counsel for Jacobs and St.

Joseph's Imaging

Edward D. Carni, J.

Introduction

Defendants Jonathan Marc Jacobs, M.D. and St. Joseph's Imaging Associates, P.L.L.C. bring this motion seeking an order dismissing plaintiff's complaint on the grounds of plaintiff's "failure to serve a complaint within twenty (20) days as required by CPLR § 3012." [*2]

Plaintiff cross-moves for an order "granting plaintiff (A) leave to serve a late complaint on all defendants, (B) leave to effect late service of process on defendant Jonathan Marc Jacobs, M.D. and defendant Paula Pons, M.D. and deeming the service of process made on them timely nunc pro tunc and (C) such other further relief as the court may deem just and proper."[FN1]

Defendants Paula Pons, M.D. and Upstate Surgical Group, P.C. cross-move for an order "dismissing this action based upon plaintiff's failure to serve a complaint pursuant to CPLR Rule 3012(b) and plaintiff's lack of personal jurisdiction over the defendant pursuant to CPLR Rule 3211(a)(8), along with such other and further relief as to the court seems just and proper."

Defendants Jacobs and St. Joseph's Imaging Associates, P.L.L.C cross-move for an order pursuant to CPLR § 3211(a)(8) dismissing plaintiff's complaint for "lack of personal jurisdiction over defendants Jacobs and St. Joseph's Imaging Associates, P.L.L.C."

Defendant St. Joseph's Hospital Health Center has not moved for any relief or submitted any papers in support or in opposition to any of the motions.

Facts

Plantiff commenced this action by the filing of a Summons with Notice on July 19, 2005. CPLR § 306-b requires service of the Summons with Notice to be made within one hundred twenty (120) days after the filing or, in this case, on or before November 16, 2005.

Defendant Jacobs was served personally on November 23, 2005.

Defendant St. Joseph's Imaging Associates, P.L.L.C. was personally served on November 14, 2005.

Defendant Pons was served by substituted service, including the required CPLR

§ 308[4] mailing, on November 14, 2005. The affidavit of this service was filed in the Onondaga County Clerk's Office on November 21, 2005.

Defendant Upstate Surgical Group, P.C. was personally served on November 14, 2005. [*3]

Defendant St. Joseph's Hospital Health Center was personally served on November 14, 2005.

On November 30, 2005, defendants Jacobs and St. Joseph's Imaging Associates served plaintiff with a Notice of Appearance and by separate document, a demand for a Complaint. CPLR § 3012(b) provides that where the defendant serves a written demand for the Complaint, service of the Complaint shall be made within twenty (20) days after service of the demand.

Defendants Pons and Upstate Surgical Group served a Notice of Appearance and demand for the Complaint on November 30, 2005.

There is no dispute that plaintiff has not served any of the defendants with a Complaint. Plaintiff has attached a proposed Complaint to plaintiff's cross-motion papers. There is a Certificate of Merit annexed to the proposed Complaint as required by CPLR § 3012-a.

There is no dispute that the face of the Summons with Notice as filed and served indicates as follows:

"Notice: The nature of this action is wrongful death, medical malpractice, common law negligence, breach of contract and lack of informed consent.

The relief sought is all relief this court deems just and appropriate.

Upon your failure to appear, judgment will be taken against you by default for the

relief sought with interest from the date of default and the cause of this action."

Defendants contend that the Summons with Notice is jurisdictionally defective because it does not contain a request for money damages.

Plaintiff has submitted the affidavit of a physician duly licensed to practice medicine in the State of New York and who is board certified in emergency medicine. This physician's affidavit summarizes the care and treatment provided to plaintiff's decedent and, in summary, advances claims of deviation from generally accepted standard of care against all defendants.[FN2]

The defendants have not submitted any affidavit from any qualified physician or expert to rebut the allegations of plaintiff's expert. Instead, defendants Jacobs and St. Joseph's Imaging Associates submit search results from the internet reflecting that a "PSOAS sign" is indicative of appendicitis and suggest that the inclusion in Dr. Jacobs' report of a "PSOAS" muscle reference therefore exonerates these defendants from liability. This submission is of course hearsay and [*4]insufficient to rebut the allegations of plaintiff's expert at this procedural juncture.

Lastly, plaintiff's counsel, Elijah Huling, Jr., Esq., submits an affirmation detailing the numerous difficulties encountered in his law firm as well as his personal and professional obligations which caused him to "temporarily lose track of the deadlines" and his obligations with respect to this file.

Analysis

Defendant Jacobs was served with the Summons with Notice one hundred twenty-four days after the filing. Defendant St. Joseph's Imaging Associates was timely served. Defendant Pons was timely served. Upstate Surgical Group was timely served. St. Joseph's Hospital Health Center was timely served.

The court finds that pursuant to CPLR § 306-b, plaintiff has met his burden of demonstrating good cause shown and in the interest of justice, the court extends the time for service upon defendant Jacobs by seven (7) days. Thus, plaintiff's cross-motion seeking an extension of time to serve defendant Jacobs is granted nunc pro tunc and the service of the Summons with Notice upon defendant Jacobs on November 23, 2005 was therefore timely (Busler v Corbett, 259 AD2d 13, 17 [4th Dept 1999] [Service made 28 days late. Court granted extension in the interest of justice as there was not demonstrable prejudice to defendant that would militate against granting the extension of time to serve her]).

CPLR § 3012(d) provides that upon the application of a party, the court may extend the time to plead upon such terms as may be just and upon a showing of reasonable excuse for the delay or default. In exercising its discretion under CPLR § 3012(d), the court is required to undertake a balanced consideration of several factors. These factors include "the nature of the action, the length of the delay, the excuse offered, the possibility of prejudice, the absence of willfulness, and any other relevant matter" (Sponsor's Memorandum in Support of Legislation A. 6743-A/S. 4346-A [1983], page 1; 5 Weinstein, Korn & Miller Paragraph 3012.15, pages 30-229).[FN3]

Insofar as plaintiff's failure to timely serve a Complaint is concerned, the court finds that pursuant to CPLR § 3012(d) there is no prejudice to defendants in the plaintiff's delay in serving the Complaint and that plaintiff has made a showing of reasonable excuse for the delay. Plaintiff's expert affidavit is adequate to establish a meritorious cause of action at this juncture (Rose v Our Lady of Mercy Medical Center, 268 AD2d 225 [1st Dept 2000]). Accordingly, plaintiff's time to serve the Complaint is extended for an additional ten (10) days from the date of entry of the court's order issued upon this decision. [*5]

Lastly, insofar as the defendants urge that the Summons with Notice failed to provide the defendants with sufficient notice of the nature of the relief sought, the court finds that the Summons with Notice, taken as a whole, provided defendants with adequate notice of the nature of the action as sounding in medical malpractice, wrongful death, breach of contract and negligence.

Under these theories, there is only one (1) available type of relief in the form of money damages. Plaintiff has not sought a default judgment, defendants have appeared and demanded a complaint and the defendants have not demonstrated confusion or prejudice because the Summons with Notice did not expressly demand "money damages." CPLR § 305[b] is intended as a shield to protect an unwary defendant from default judgment without proper notice, not as a sword to trap a tardy or inattentive plaintiff into dismissal (See, Bal v Court Employment Project, Inc., 73 AD2d 69, 71 [1st Dept 1980]). In this court's view, the absence of a specific mention of money damages on the Summons with Notice in a medical malpractice action is not jurisdictionally defective and the court notes that the general legislative policy of this state is to eliminate specific amounts of damages to which the pleader deems himself entitled in the context of personal injury, medical malpractice and wrongful death actions (See, CPLR § 305(b); CPLR § 3017[c]).[FN4]

This constitutes the decision of the court. Plaintiff's counsel to submit proposed order consistent with this decision and addressing all of the motions on notice to counsel.

ENTER

Dated: April 11, 2006________________________________

Honorable Edward D. Carni, J.S.C.

Footnotes


Footnote 1: Defendant Pons has not objected or contested the timeliness of the service of the Summons with Notice on her by substitute service (CPLR § 308[4]) on November 14, 2005. Although proof of such service was not filed (CPLR § 308[4]) until November 21, 2005 (125 days after commencement) and was not complete until ten (10) days later (December 1, 2005), the law is well settled that under CPLR § 306-b, service need only be "made" within 120 days and need not be "complete" within 120 days (Sorrento v Estate of Sorrento, 286 AD2d 873, 874 [4th Dept 2001]). Here, there is no dispute that service was "made" upon defendant Pons within the 120 days and therefore is timely under CPLR § 306-b.

Footnote 2: Although defendants raise the issue that plaintiff's medical expert may well be Attorney Huling's law partner, assuming that is true, same would not disqualify this expert from rendering opinions (See, CPLR § 4512).

Footnote 3: The court notes that it is not uncommon for a medical malpractice defendant to need and seek the relief available under CPLR § 3012(d) for failing to timely plead (ECKNA v Kesselman, 11 AD3d 507 [2nd Dept 2004]; Santos v City of New York, 269 AD2d 585 [2nd Dept 2000]).

Footnote 4: Courts routinely require the elimination of any mention of damages whenever a medical malpractice claim is alleged (See, Rice v Vandenebossche, 185 AD2d 336, 338 [2nd Dept 1992]; cited with approval in Brath v Kenmore Mercy Hosp., 198 AD2d 771 [4th Dept 1993]). This court is mindful that CPLR § 3017 [c] applies generally to complaints. He we are dealing with a Summons with Notice. Although CPLR § 305 [b] does not expressly prohibit the inclusion of the amount of money damages demanded, and the Legislature did not amend CPLR § 305 [b] to sound in harmony with CPLR § 3017 [c], in this court's view the statutory scheme taken as a whole was not intended to permit a clever plaintiff to evade the CPLR § 3017 [c] limits by choosing to commence the action by CPLR § 305 [b] Summons with Notice.