This Decision & Order addresses defendants' pre-answer motions to dismiss the complaint on various grounds.^[FN1]

Defendant Walter R. Rojas, MD moves for dismissal due to improper service, lack of personal jurisdiction and failure to timely commence the action pursuant to CPLR §§ 306-b, 3211 (a)(8), and 3211 (a)(5).

Defendant Meg White, RN, Director of Undergraduate Programs moves for dismissal of the complaint pursuant to CPLR §§ 306-b and 3211 et seq.

Defendants Director Lourdes Emergency Department, R. Barden and David Patak (collectively "Lourdes Defendants") move for an order of dismissal pursuant to CPLR §§ 306-b and 3211(a)(8).

Defendant Armando B. Mata, MD moves to dismiss pursuant to CPLR § 3211 (a)(8).

Plaintiff Pavel Komanicky, appearing pro se, opposes all motions in all respects.

The court will summarize the facts as alleged in the complaint.

On or about December 21, 2011, Dr. Mata performed a skin biopsy on plaintiff.

On February 24, 2012, plaintiff went to the Lourdes Emergency Department regarding an ulcer on his right leg. Plaintiff was seen and evaluated by Michael Free, RPAC, an assistant to defendant Walter R. Rojas, MD. Plaintiff requested a "Gram's Stain and culture/sensitivity" and for a consultation to a wound care center specialist (Complaint ¶ 4). The complaint states that Mr. Free never followed up with plaintiff's requests. Next, the complaint alleges that two unidentified medical/nursing students came in and treated his ulcer. Thereafter, plaintiff states that Nurse Barden came in and reported that his tests were negative and that he was going to be discharged (Complaint, ¶ 9). Presumably, plaintiff left Lourdes Emergency Department that same day.

On February 27, 2012, plaintiff states he had an office visit with Dr. Mata.

On February 28, 2012, due to worsening symptoms, plaintiff states he went to the "Emergency Department of another institution" (Complaint ¶ 11). The complaint alleges he was [*2]hospitalized for nine days.

On August 21, 2014, plaintiff filed a summons with notice in the Broome County Clerk's Office. The summons states the nature of the action as "medical malpractice".

Then, nearly 4 months later, on December 17, 2014, plaintiff filed a complaint describing the aforementioned events. The complaint describes the alleged negligence by the defendants in terms of "counts" and is best to quote verbatim:

22. Count a:Michael Free, RPAC: Failed to properly take plaintiff's history of the illness, perform proper examination, order appropriate laboratory tests, obtain consultations, and properly treat the plaintiff.

23.Count b:Walter R. Rojas, MD: Failed to supervise his assistant Michael Free RPAC and did not even see the plaintiff.

24.Count c:R. Barden, RN: Being in charge of nursing care of the plaintiff, delegated care to inexperienced, unqualified "first day on the job" unsupervised nursing students. She also failed to consider and act on the plaintiff's concerns.

25.Count d:Director of Lourdes Emergency Department: Being in charge of all operations, failed to ensure safe, correct, appropriate and responsible patient care. And is severally and jointly liable for the acts of subordinates and contractors.

26.Count e:David Patak, President and CEO, Lourdes Hospital: failed to ensure safe, appropriate and professional delivery of health care at the institution, he is in charge of.

27.Count f:Meg White, RN, Director of Undergraduate Programs, Decker School of Nursing: failed to develop and/or implement proper guidelines for nursing students for their participation in learning activities at a point of patient care. And is severally and jointly responsible for their actions.

28.Count g:Armando B. Mata, MD: failed to properly instruct Emergency Department staff on Friday, February 24, 2012, to order appropriate laboratory tests, not to discharge plaintiff home, and to treat him appropriately.

(Complaint, ¶¶ 22-28).

In late December 2014 and early February 2015, plaintiff made service attempts of the summons (filed August 21, 2014) and complaint (filed on December 17, 2014) on the various defendants which will be examined in detail herein below.

The court heard oral argument from plaintiff and counsel on August 21, 2015.

The grounds for dismissal raised by the defendants overlap and include lack of personal jurisdiction, statute of limitations, and failure to state a cause of action. The court will set forth the applicable law and then examine the law applied to the facts pertinent to each defendant.

According to CPLR § 3211 (a) (8), "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has not jurisdiction of the person of the defendant." Under CPLR § 3211(a)(8), the burden of proving jurisdiction rests upon the party asserting it. Thus, on this motion to dismiss, the plaintiff is obligated to come forth with definite evidentiary facts to support the exercise of jurisdiction over the defendant (Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832 [3d Dept 1988]).

A brief overview of the service methods used - or attempted to be used - by plaintiff is warranted.

CPLR § 308 (2) contains a two-part requirement for effective service with the first being delivery to a person of suitable age and discretion at certain specified premises and the second component being a mailing either to the last known residence or actual place of business (hence the phrase "deliver and mail"). The additional mailing is also required to be in an envelope bearing the legend of "personal and confidential" and not indicating on the outside that the communication is from an attorney or concerns litigation. Both steps - deliver and mail - must be achieved within 20 days of each other with proof of service filed with the clerk within 20 days thereafter. Failure to perform both steps is a jurisdictional defect. Actual receipt is not dispositive (Ruffin v Lion Corp., 15 NY3d 578, 583 [2010]).

CPLR § 312-a is another method of service that plaintiff attempted to use which permits the use of service by regular mail, together with a "statement of service by mail and acknowledgment of receipt". However, successful service under this provision requires a defendant's cooperation in completing and returning the signed acknowledgment of receipt form. The defendant is under no obligation to cooperate (Matter of Shenko Elec. v Hartnett, 161 AD2d 1212 [4th Dept 1990]). Stated simply, plaintiff is incorrect in his belief that the law requires a defendant to cooperate. The only remedy for a plaintiff that is faced with the lack of cooperation of a defendant who fails to return the acknowledgment is the ability to recover the expense for follow-up service on that defendant (CPLR § 312-a [f]). Additionally, the fact that a defendant [*3]may have actually received the summons and complaint is of no moment (Clarke v Smith, 98 AD3d 756 [3d Dept 2012]).

Regardless of the method of service used, CPLR § 306-b also requires that the summons must be served within 120 days of filing of the summons with notice. More specifically, CPLR § 306-b states:

[s]ervice of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice, third-party summons and complaint, or petition....

If service is not achieved within that time frame, the court may extend the time to serve upon a showing of good cause or interests of justice. An analysis of this extension provision is discussed in relation to all the defendants herein below (Point V).

It is undisputed that the summons with notice and complaint were personally delivered to defendant Rojas on February 5, 2015 which is 168 days after the summons with notice was filed on August 21, 2014.

CPLR § 306-b requires that service be made upon a defendant within 120 days after the filing of the summons with notice. Plaintiff has clearly not complied with CPLR § 306-b with respect to defendant Rojas.

Plaintiff's request to extend the time to serve upon a showing of good cause or interests of justice under CPLR § 306-b is discussed herein below (Point V).

Defendant Meg White is named in the caption as "Meg White, RN, Director of Undergraduate Programs." Defendant White avers that she is the current Director of Undergraduate Programs for Binghamton University's Decker School of Nursing, as well as a clinical instructor and lecturer.

Quite simply, this court lacks subject matter jurisdiction over this defendant to the extent she is named in her capacity as an officer or employee of the state (Court of Claims Act §9 [2]). The Court of Claims has exclusive jurisdiction over suits against a state officer or employee.

As a separate and distinct basis for dismissal, even if subject matter jurisdiction was not in issue, it is undisputed that the summons with notice and complaint were personally delivered to defendant White on February 4, 2015. CPLR § 306-b requires that service be made upon a [*4]defendant within 120 days after the filing of the summons with notice. Here, service on defendant White was made 167 days after the summons with notice was filed on August 21, 2014. Thus, plaintiff has clearly not complied with CPLR § 306-b with respect to defendant White.

Plaintiff's request to extend the time to serve upon a showing of good cause or interests of justice under CPLR § 306-b is discussed herein below (Point V).

The Lourdes Defendants move for dismissal due to plaintiff's failure to serve the summons with notice within 120 days of its filing on August 21, 2014 pursuant to CPLR § 306-b.

On December 29, 2014, the Lourdes Defendants received a copy of the summons with notice and complaint by mail. This attempt did not comply with CPLR § 312-a because the Lourdes Defendants chose not to voluntarily return the acknowledgment form as was their right. Additionally, the attempted service was more than 120 days from the filing of the summons with notice and, as such, violated CPLR § 306-b.

On February 4, 2015, defendant Barden and Director Lourdes Emergency Department were served by substituted service via delivery of the summons with notice and complaint to "Anne Wolanski, Director". The affidavit of service also avers to a mailing to 169 Riverside Drive, Binghamton, New York on February 5, 2015. However, the affidavit of service was dated on February 4, 2015 which was prior to the alleged date of mailing. In any event, this attempt at substituted service on February 4, 2015 was approximately 167 days after the filing of the summons with notice which is 47 days beyond the 120 day deadline to do so.

Plaintiff's request to extend the time to serve upon a showing of good cause or interests of justice under CPLR § 306-b is discussed herein below (Point V).

With respect to defendant Patak, at the time of attempted service, it appears that he was no longer employed by Lourdes and has never been served. Additionally, Mr. Patak was the CEO of the hospital and never treated plaintiff. Thus, there is no basis for vicarious liability and defendant Patak's motion to dismiss on the additional ground of failure to state a cause of action is granted (CPLR § 3211 [a][7]).

Defendant Mata moves to dismiss the action on the grounds there is no personal jurisdiction due to defective service, failure to timely serve the initiatory pleading (CPLR § 306-b), and failure to provide a certificate of merit.^[FN2]

On February 4, 2015, the summons with notice and complaint were personally delivered to Renee Mix, Manager, and mailed to 161 Riverside Drive, Binghamton (Dr. Mata's office address) on February 5, 2015. The affidavit of service is sworn to on February 4, 2015 which is the date prior to the alleged mailing.

Defendant Mata concedes that the first prong of CPLR § 308 (2) was satisfied by the delivery recited above, but argues that plaintiff has failed to demonstrate strict compliance with the second prong thereof. As noted above, CPLR § 308 (2) also requires an additional mailing of the pleading in an envelope bearing the legend "personal and confidential". There is no proof that this second prong was satisfied. Accordingly, the court finds that plaintiff has failed to strictly adhere to the requirements of CPLR § 308 (2).

As a separate and distinct basis for dismissal, the summons with notice (filed on August 21, 2014) was not served on defendant Mata within 120 days from said filing which time period expired on December 19, 2014. Thus, plaintiff has clearly not complied with CPLR § 306-b with respect to defendant Mata. Plaintiff's request to extend the time to serve upon a showing of good cause or interests of justice under CPLR § 306-b is discussed herein below (Point V).

Here, it is undisputed that the statute of limitations has expired. On a motion to dismiss based on lack of proper service made after the limitations period has expired, the court only has two options, namely outright dismissal or granting a cross-motion for an extension of time to serve process pursuant to CPLR § 306-b (Henneberry v Borstein, 91 AD3d 493 [1st Dept 2012]). While plaintiff has not made a formal cross-motion seeking an extension of time to serve upon a showing of good cause or interests of justice under CPLR § 306-b, the court will address the issue (Heath v Normile et al., 2015 NY Slip Op 06460 [3d Dept 2015]).

The good cause standard requires a threshold showing that the plaintiff made reasonably diligent efforts to make timely service (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). Generally, relief under the good cause standard requires a failure to serve as a result of circumstances beyond plaintiff's control (Bumpus v New York City Tr. Auth., 66 AD3d 26 [2d Dept 2009]). Here, the summons with notice was filed on August 21, 2014. The 120 day time period for plaintiff to serve process on any of these defendants expired on December 19, 2014. Not one of plaintiff's service attempts on any of the defendants was made within that 120 day time period. An absence of any attempt within the 120 days of the filing of summons with notice typically disqualifies plaintiff from an extension using good cause (Valentin v Zaltsman, 39 AD3d 852 [2d Dept 2007]). Thus, the court finds that good cause has not been demonstrated here.

The interests of justice standard is the more flexible option and is subject to the discretion of the court. The factors to be considered include: plaintiff's diligence; whether the statute of limitations has expired; the meritorious nature of the action; the length of delay in service; the promptness of the plaintiff's request for the extension of time; and prejudice to the defendant (Dujany v Gould, 63 AD3d 1496 [3d Dept 2009]).

In examining these factors, the court finds that plaintiff's service attempts demonstrate a lack of diligence. The applicable 2 ½ year statute of limitations expired on August 24, 2014 before any of the service attempts were made in December 2014 and February 2015. Also, plaintiff did not seek an extension until faced with the instant dismissal motions. The most significant factor, however, is whether the action is meritorious. Nothing in plaintiff's opposing papers provides any additional allegations of malpractice. Thus, considering all the factors, but especially given the lack of merit, an extension of time under the interest of justice standard is not warranted (Pierce v Village of Horseheads Police Dept., 107 AD3d 1354 [3d Dept 2013]). Thus, plaintiff is barred from recommencing this action pursuant to CPLR § 3211 (a)(5).

In view of the foregoing, defendants' motions to dismiss the complaint on the grounds that the court does not have jurisdiction due to improper service (CPLR § 3211 [a][8]) and/or failure to state a cause of action (CPLR § 3211 [a][7]) are granted. Plaintiff's cross-motion for an extension of time to permit service is denied. The complaint is dismissed in its entirety.

This constitutes the order of the court.