[*1]
| Cherney v Raynor |
| 2012 NY Slip Op 50640(U) [35 Misc 3d 1210(A)] |
| Decided on April 4, 2012 |
| Suffolk County Ct |
| Tarantino, 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Suffolk County Ct
Stuart B. Cherney,
M.D., Plaintiff
against
Joseph Raynor, DAVID GROVER, ESQ., & GROVER &
FENSTERSTOCK, P.C. , Defendants
|
11-34842
David J. Sobel P.C.
Attorney for Plaintiff
811 West Jericho Tpke, Ste 105W
Smithtown NY 11787
Grover & Fensterstock P.C.
By: Simon B. Landsberg Esq
Attorneys for David Grover, and Grover & Fensterstock P.C.
750 Third Ave Ste 900
New York NY 10017
Andrew G. Tarantino, J.
This action was commenced by filing a Summons and Verified Complaint
on December 1, 2011. Plaintiff alleged that Defendant Raynor, to whom Plaintiff rendered
medical services, signed a lien in Plaintiff's favor against proceeds Raynor anticipated receiving
in a personal injury suit. Plaintiff alleged that Defendants Grover and Grover and Fensterstock
PC acknowledged the lien, and that the lien has not been paid by any Defendant. In this
pre-answer motion, David Grover Esq and Grover & Fensterstock PC [hereinafter Defendants],
moved this Court for an Order dismissing this action by Notice dated March 9, 2012. Plaintiff,
Stuart Cherney MD, by his attorney David Sobel Esq., opposed the motion. In the motion,
Defendants alleged:
1. the claim against David Grover, as individual, should be dismissed because he
signed the lien on behalf of the P.C.;
2. the summons was fatally defective because it named the wrong court; and
3. service of process was not attained because Defendants' Suffolk County address
where process was served was only a satellite office and Defendant Grover only works in the NY
City office; and
4. Plaintiff should be sanctioned for frivolous behavior because of the confusion
caused when the County Court action was placed before a Supreme Court judge.
[*2]
PROCEDURAL
HISTORY
Plaintiff's attorney filed a Summons and Verified Complaint
bearing Index Number 11-34842. The summons is dated November 1, 2011. Plaintiff alleged that
Defendant, Joseph Raynor, and his attorneys, David Grover Esq. and Grover & Fensterstock PC.,
failed to comply with a lien placed on Raynor's legal file for medical services rendered by
Plaintiff. Plaintiff seeks $20,825.00.
Defendants moved to dismiss the action by Notice dated December 19, 2011. The Motion
was captioned for County Court, County of Suffolk. Plaintiff opposed the motion on January 20,
2012. Defendants replied on January 24, 2012.On February 23, 2012, Supreme Court Justice
William B. Rebolini denied the motion without prejudice noting that the papers were captioned
"County Court County of Suffolk" and upon perusing the motion determined that the action was
intended for County Court.
Defendants have now moved this Court by Notice dated March 9, 2012. Plaintiff has
answered, and Defendants, again, filed a reply.
FACTS
The summons dated November
1, 2011 was captioned "County Court, County of Suffolk." It further stated, "You are hereby
summoned to appear in the County Court of the County of Suffolk, State of New York, at the
office of the Clerk of said Court at 210 Center Drive, Riverhead, NY." That address is the
County Court, not the Supreme Court, in Suffolk County. The basis of venue was set forth as
Plaintiff's place of business. The first motion, the answering papers, and reply, were each
captioned County Court, County of Suffolk. The second motion was captioned Supreme Court
State of New York, County of Suffolk.
The complaint stated that Joseph Raynor was and still is a resident of the County of
Suffolk, that David Grover Esq. maintained an office in Hauppauge, County of Suffolk, and that
Grover & Fensterstock PC maintained an office in Hauppauge, County of Suffolk.
The lien, signed in favor of Dr. Stuart Cherney, was executed by Joseph Raynor. It
authorized and directed [his attorneys] " into whose hands [sic] or any of the proceeds shall
come, to hold in trust for any pay over to Dr. Stuart Cherney such sum as in [sic] claimed by
him." It then states, "I David Grover, attorneys for the above named patient, do hereby
acknowledge the above assignment," followed by a signature. The attorney signature does not
indicate that David Grover signed it on behalf of the law firm.
Plaintiff submitted pages from the Grover & Fensterstock PC web site. When one
goes to the web page submitted by Plaintiff, there is a toll free number without any indication
where the law office is located. There is a left-side tab labeled "contact us." When clicked, the
next page is labeled "our addresses" followed by three hyperlinks, one to each of New York City,
Long Island, and Connecticut. The Long Island office is at Ten Newton Place, Suite 201,
Hauppauge NY 11788. The Long Island office has a 631-area code as a phone number and a
telefax. None of the three choices of location stated which the principal office is, and each
provided area-code specific telephone numbers. Plaintiff also submitted proofs of service, filed
with the Court Clerk on December 16, 2011. Two affidavits, one for David Grover and one for
Grover & Fensterstock PC, were served by delivering a copy of the summons and complaint to
Debra Ali, identified as Managing Agent, at the Hauppauge address, on December 6, 2011. A
[*3]copy was then mailed on December 7, 2011, to David Grover,
individually, at the Hauppauge address in an envelope marked "personal and confidential." In the
instant motion, Plaintiff submitted proof of service, pursuant to NY Business Corporation Law
§306, of the Summons and Complaint on the NY Department of State, dated January 17,
2012.
No proof of service has been submitted by either side that any of the motions or
papers was served upon the Defendant Joseph Raynor.
THE LAW
The county court shall have
jurisdiction over actions and proceedings for the recovery of money where the amount sought to
be recovered or the value of the property does not exceed twenty-five thousand dollars exclusive
of interest and costs. NY Const Law Art. 6, §11. The jurisdiction of the county court
extends to an action where the defendant, or if there are two or more defendants, where all of
them, at the time of the commencement of the action, reside in the county, or where a defendant
has an office for the transaction of business within the county and the cause of action arose
therein. NY Judiciary Law §190. The term "clerk of the court" shall mean the county clerk.
22 NYCRR §202.5(c). Upon filing the summons and complaint in an action in county court
with the clerk of the county, an index number shall be assigned and the fee [ ] shall be paid.
CPLR §306-a. The summons shall specify the basis of the venue designated. CPLR
§305. A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall
be disregarded by the court, and leave to correct shall be freely given. CPLR §2101(f). The
party on whom a paper is served shall be deemed to have waived objection to any defect in form
unless, within two days after the receipt thereof, he returns the paper to the party serving it with a
statement of particular objections. CPLR §2101(f). Due process requires "notice reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank
& Trust Co., 1950, 339 U.S. 306, 314, 70 S.Ct. 652, 656, 94 L.Ed. 865, 873 . Personal
service upon a natural person shall be made by delivering the summons within the state to a
person of suitable age and discretion at the actual place of business [ ] and 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." CPLR §308. Personal service upon
a corporation shall be made by delivering the summons to an officer, director, managing or
general agent, or cashier or assistant cashier or to any other agent authorized by appointment or
by law to receive service. CPLR §311 (see also, BCL §306). All [attorney]
advertisements shall include the name, principal law office address and telephone number of the
lawyer or law firm whose services are being offered. Lawyers Code of Professional
Responsibility, DRL-101(H).
DECISION
The Summons, bearing Index
Number 11-34842, was captioned County Court County of Suffolk. In his opposition, Plaintiff
submitted a copy of the summons with the County Clerk stamp affixed with a December 1, 2011,
purchase date. The copy of the Summons that was submitted by Defendants had the index
number affixed, and had a handwritten purchase date of 12/1/12 (an apparent oversight as many
people confuse the year as New Year approaches). Substantively, the summons was captioned
properly, and had the Index Number affixed.
The Court is ignoring the fact that the Defendants' instant motion was captioned in
[*4]Supreme Court, which is incorrect.While Justice Rebolini
was in Supreme Court when the first motion was submitted, this Court was informed by the
Chief Clerk that it was the court's data entry error that submitted the original County Court action
to a Supreme Court judge. The error was not attributable to any party, or their attorneys. Now
that the court has internally corrected its error, all captions shall indicate County Court,
County of Suffolk.
The Summons set forth the basis of venue as "plaintiff's place of business." On its
face, such is not a basis for venue in County Court. However, upon reading the verified
complaint submitted by Defendants, it clearly alleged that the Plaintiff relied upon Defendants'
places of business in Hauppauge. There was no allegation that Plaintiff relied upon Defendant's
place of residence. Because the Verified Complaint relied upon Defendants' places of business,
the Defendants are not prejudiced by the Court disregarding the defect on the Summons. The
Defendants' reply, setting forth a new argument that Grover does not reside in Suffolk, is rejected
by the Court as untimely. Such an argument should have been made in the moving papers,
especially because Plaintiff did not raise the issue of Grover's residence in his opposition.
The Court equally disregards Defendants' arguments that their Hauppauge office was
just a satellite office and that their actual place of business was New York City. There is nothing
in its website that indicates that the Defendants' principal office was New York City. As
indicated above, when forwarded to the linked pages for each of its three offices, each location
has area-code specific telephone numbers and addresses, and none are indicated as being a
principle office or satellite office. The Court cannot look into the Defendants' minds to determine
their intentions. To accept the Defendants' arguments would create a "round-robin" defense
wherein Defendant can contest service at any of its offices by claiming another is the
principle office. Instead, it must be viewed from the perspective of the person searching for
Defendant and, in this case, one can only conclude that Defendants conducted business at the
Hauppauge office. In as much as the CPLR §308 commentaries offer little insight into the
definition of "actual place of business," it does state that there is no clear definition. Additional
elements supporting the Court's determination were that Defendant Raynor lived in Suffolk
County, and used the medical facilities in Suffolk County, i.e., Plaintiff Cherney's
services. Thus, one can conclude that Raynor used a law firm located in Suffolk County.Upon the
facts presented, there is a real and rational basis to conclude that Defendants operated an office in
Hauppauge, Suffolk County.
The remaining issues are service upon Defendant David Grover, as a person, and
upon Defendant Grover & Fensterstock PC, as a corporation. As stated above, Plaintiff
proceeded with service of the summons and complaint on the NY Department of State on
January 17, 2012. Proof of service on the NY Department of State, although occurring after the
December 7, 2011, service in Hauppauge, established service of process on Grover &
Fensterstock PC. The firm maintained a place of business in Suffolk County, regardless of which
county the corporation was "domiciled" (as may be set forth on its certificate of incorporation)
and the cause of action accrued in Suffolk County. As for Defendant Grover, service upon a
natural person need not be made upon an agent, but merely upon a person of suitable age and
discretion at the party's place of business. Defendants did not argue that the person served was
not of suitable age. Defendant denied the person was an agent, but did admit that the person
served was the common area secretary. Service of process is intended to provide notice
reasonably calculated, under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.
[*5]
Based upon the above, it is hereby
ADJUDGED AND ORDERED that Defendants' motions are denied in the
entirety; and it is further
ORDERED that the time within which Defendants must file a verified
answer is hereby extended pursuant to NY Civ Pract Laws and Rules; and it is further
ORDERED that all parties are directed to appear before the Court, at 1 Court
Street, Annex Building, Riverhead NY, on APRIL 26, 9:30AM, to select a trial date.
ENTER
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