On January 22, 2016, plaintiff fell while descending a concrete ramp on property owned by defendant Congregation Shaaray Tefila Glens Falls New York (hereinafter CSTGFNY). She thereafter commenced this personal injury action on January 18, 2019 against CSTGFNY, as well as defendant Board of Directors of CSTGFNY (hereinafter the Board); defendant Michael Gersten, an officer of CSTGFNY's House Committee; defendant Larry Greenberg, treasurer of the Board; and Mark M. Hoffman, President of the Board, with the latter three defendants also sued in their individual capacities. Plaintiff alleges two causes of action: (1) negligence as against all defendants; and (2) gross negligence as against Greenberg and Hoffman. Issue was [*2]joined by service of an answer on or about April 12, 2019. Presently before the Court is defendants' motion for (1) dismissal of the complaint as against Gersten and Greenberg under CPLR 3211 (a) (8); (2) summary judgment dismissing the first cause of action as against the individual defendants under N-PCL 720-a; and (3) dismissal of the second cause of action under CPLR 3211 (a) (7). Also before the Court is plaintiff's cross motion for leave to amend the complaint under CPLR 3025 (b). The motion and cross motion will be addressed ad seriatim.

Turning first to that aspect of defendants' motion which seeks dismissal of the complaint as against Gersten and Greenberg, CPLR 3211 (a) (8) provides that "[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."

In support of their motion defendants have submitted the affidavits of Gersten and Greenberg, both of whom state that they "have never been served with the [s]ummons and [c]omplaint in this matter." Plaintiff in fact concedes that neither was personally served, stating that Hoffman "was served with three originals" of the summons and complaint at CSTGFNY on March 29, 2019 and "could have left them on the secretary's desk for her to contact Gersten and Greenberg about them." Plaintiff further states as follows:

"Hoffman[] accepted the copy for himself and the copies for Gersten and Greenberg. If he had refused the other two copies, or dropped them on the ground and walked away, they would have been available to [p]laintiff to serve to Gersten and Greenberg before the end of the 120[-]day service period that ended on May 19, 2019. It was unknown to [p]laintiff that Gersten and Greenberg[] had not received the papers that Hoffman had accepted[] until she read the [motion papers]."

CPLR 308 sets forth the permissible methods of personal service upon a natural person.One such method — commonly known as substitute service — is described as follows:

"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, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or 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' and not indicating on the outside thereof, by return address or otherwise, that the communication . . . concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing" (see CPLR 308 [2]).

The method by which plaintiff purports to have served Gersten and Greenberg fails to comply with the requirements of substitute service for several reasons. First, while Hoffman was perhaps a person of suitable age and discretion, he was served at CSTGFNY, which was Gersten and Greenberg's place of worship — not their actual place of business, dwelling place or usual [*3]place of abode. Further, there was no follow-up mailing of the summons to either Gersten or Greenberg and, finally, proof of service has never been filed with respect to either of these defendants. The Court therefore grants that aspect of defendants' motion which seeks dismissal of the complaint as against Gersten and Greenberg under CPLR 3211 (a) (8).^[FN1]

Turning now to that aspect of defendants' motion which seeks summary judgment dismissing the first cause of action as against the individual defendants, the Court first observes that this aspect of the motion is moot with respect to Gersten and Greenberg — as the complaint has been dismissed as against them. This portion of the motion will thus be considered with respect to Hoffman only.

That being said, a party seeking summary judgment must establish its entitlement to judgment as a matter of law by admissible proof (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).

Here, defendants contend that they are entitled to summary judgment dismissing the first cause of action as against Hoffman under N-PCL 720-a, which provides as follows:

"[N]o person serving without compensation as a director, officer or trustee of a corporation, association, organization or trust described in [26 USC § 501 (c) (3)] shall be liable to any person other than such corporation, association, organization or trust based solely on his or her conduct in the execution of such office unless the conduct of such director, officer or trustee with respect to the person asserting liability constituted gross negligence or was intended to cause the resulting harm to the person asserting such liability."

26 USC § 501 (c) (3) then sets forth a list of tax exempt organizations including, inter alia, "[c]orporations, and any community chest, fund, or foundation, organized and operated exclusively for religious . . . purposes."

Here, Hoffman has submitted an affidavit stating that "CSTGFNY is a religious [n]ot-[f]or-[p]rofit organization" under 26 USC § 501 (c) (3) and "none of its Directors are compensated." He further states that he "has served as a Director and President of . . . CSTGFNY without compensation." Based upon this, the Court finds that defendants have met their initial burden of establishing their entitlement to summary judgment as a matter of law dismissing plaintiff's first cause of action as against Hoffman.

The Court further finds that plaintiff has failed to raise a triable issue of fact in opposition. Indeed, plaintiff does not dispute that CSTGFNY is a religious not-for-profit organization under 26 USC § 501 (c) (3) nor that its Directors serve without compensation. The Court therefore grants that aspect of defendants' motion which seeks summary judgment dismissing the first cause of action as against Hoffman.^[FN2]

Turning now to the third and final aspect of the motion, defendants contend that they are entitled to dismissal of the second cause of action because it fails to state a claim (see CPLR 3211 [a] [7]).^[FN3] Again, to the extent that the complaint has been dismissed as to Greenberg, this portion of the motion need only be considered with respect to Hoffman.

"On a motion to dismiss for failure to state a cause of action, [the Court] must 'afford the pleadings a liberal construction, accept the facts alleged therein as true, accord the plaintiff the benefit of every possible inference and determine whether the facts alleged fit within any cognizable legal theory'" (Nelson v Capital Cardiology Assoc., P.C., 97 AD3d 1072, 1073 [2012], quoting Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d 1450, 1452 [2010]).

Here, plaintiff alleges in her second cause of action that Hoffman "knew . . . there was a deep crack in the ramp walkway[ and] recklessly and intentionally neglected to repair it." Plaintiff further alleges that Hoffman essentially "excommunicated" her from CSTGFNY after her fall, causing her to feel "humiliated," "belittled" and "saddened."

A claim for gross negligence "requires 'conduct that evinces a reckless disregard for the rights of other or smacks of intentional wrongdoing'" (Graven v Children's Home R.T.F., Inc., 152 AD3d 1152, 1155 [2017], quoting Finsel v Wachala, 79 AD3d 1402, 1404 [2017]).

With that said, even accepting plaintiff's allegations as true and according her the benefit of every possible inference, the conduct alleged simply does not rise to the level of gross negligence (see Graven v Children's Home R.T.F., Inc., 152 AD3d at 1155; Skywest, Inc. v Ground Handling, Inc., 150 AD3d 922, 923 [2017]). The Court further notes that these allegations fail to state a cause of action for intentional infliction of emotional distress, which requires a party "'to plead extreme and outrageous conduct, the intentional or reckless nature of such conduct, a causal relationship between the conduct and the resulting injury, and severe emotional distress'" (Loch Sheldrake Beach & Tennis Inc. v Akulich, 141 AD3d 809, 814 [2016], quoting Hyman v Schwartz, 127 AD3d 1281, 1283 [2015] [internal quotation marks and citations omitted]; see Howell v New York Post Co., 81 NY2d 115, 121 [1993]). Again, the conduct alleged simply does not rise to the requisite level of egregiousness (see Loch Sheldrake Beach & Tennis Inc. v Akulich, 141 AD3d at 814-815). The Court therefore grants that aspect of defendants' motion [*4]which seeks dismissal of the second cause of action.^[FN4]

Turning now to plaintiff's cross motion for leave to amend the complaint, CPLR 3025 (b) provides as follows:

"A party may amend his or pleading . . . at any time by leave of court . . . . Leave shall be freely given upon such terms as may be just . . . . Any motion to amend . . . shall be accompanied by the proposed amended . . . pleading clearly showing the changes or additions to be made to the pleading."

"[T]he rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, '[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'" (NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 156 AD3d 99, 102 [2017], quoting Lucido v Mancuso, 49 AD3d 220, 222 [2008]).

Initially, the Court notes that plaintiff has failed to attach a proposed amended complaint to her motion in violation of CPLR 3025 (b) and, as such, the motion may be denied on this basis alone (see G4 Noteholder, LLC v LDC Props., LLC, 153 AD3d 1326, 1327 [2017]; Messersmith v Tate, 59 Misc 3d 203, 207 [Sup Ct, Warren County 2018]). With that said, mindful of the liberal and broad interpretation afforded to papers submitted by pro se litigants (see Matter of Stephen W. v Christina X., 80 AD3d 1083, 1084 [2011]; see Planck v SUNY Bd. of Trustees, 18 AD3d 988, 990 [2005], lv dismissed 5 NY3d 844 [2005]), the Court will nonetheless address the merits of the proposed amendments — noting that it was difficult to ascertain the content thereof without the benefit of a proposed pleading.

It appears plaintiff wishes to amend the complaint so as to remove Gersten and Greenberg as defendants and to instead assert both the first and second causes of action against CSTGFNY, the Board and Hoffman, both individually and in his capacity as President of the Board. It appears she also wants to add a request for a jury trial, and to seek compensatory damages from CSTGFNY and punitive damages from Hoffman.

To the extent that the complaint has been dismissed as against Gersten and Greenberg, plaintiff's request to remove them as defendants is now moot. Inasmuch as plaintiff seeks to amend the second cause of action so as to assert gross negligence as against CSTGFNY, the Board and Hoffman, this cause of action was dismissed hereinabove and the cross motion fails to include any new allegations which might rise to the level of gross negligence. Further, plaintiff is entitled to a jury trial under CPLR 4101 irrespective of whether such trial is requested in the complaint and she has already sought compensatory damages from CSTGFNY in her original complaint. Finally, the complaint has been dismissed as against Hoffman, thus precluding any amendment whereby plaintiff seeks punitive damages from him. In this regard the Court again [*5]notes that plaintiff has failed to include any new allegations which would support an award of punitive damages, which are appropriate only "where a defendant's conduct, even though unintentional, is 'grossly negligent, or wanton or so reckless as to amount to conscious disregard of the rights of others'" (Guariglia v Price Chopper Operating Co., Inc., 38 AD3d 1043, 1043 [2007], lv denied 9 NY3d 801 [2007], quoting Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 201 [1990]). Plaintiff's motion for leave to amend the complaint is therefore denied in its entirety.

Briefly, the Court wishes to address certain correspondence from plaintiff dated July 25, 2019, which correspondence was annexed to her cross motion and requests recusal based upon plaintiff's "strong belief that [the undersigned is] biased against pro se." In response, the undersigned declines to recuse and hereby assures plaintiff that he is no way biased against self-represented litigants and will preside over this case in a fair and impartial manner.

The parties are hereby directed to confer and complete a Preliminary Conference Stipulation and Order, which form is available online at http://www.nycourts.gov/courts/4jd/motion-terms-rules.shtml, and then submit the same to the Court within thirty (30) days of the date of this Decision and Order.

Therefore, having considered the Affidavit of Malcolm B. O'Hara, Esq. with exhibits attached thereto, sworn to June 17, 2019, submitted in support of the motion; Affidavit of Michael Gersten, sworn to June 13, 2019, submitted in support of the motion; Affidavit of Larry Greenberg, sworn to June 7, 2019, submitted in support of the motion; Affidavit of Mark M. Hoffman, sworn to June 7, 2019, submitted in support of the motion; Memorandum of Law of Malcolm B. O'Hara, Esq., dated June 17, 2019, submitted in support of the motion; Memorandum of Law of Valerie Hope with exhibits attached thereto, dated July 25, 2019, submitted in opposition to the motion and in support of the cross motion; Reply Affidavit of Malcolm B. O'Hara, Esq., sworn to July 30, 2019, submitted in further support of the motion and in opposition to the cross motion; and Reply Memorandum of Law of Valerie Hope, dated August 12, 2019, submitted in further support of the cross motion, it is hereby

ORDERED that defendants' motion is granted to the extent that they are entitled to dismissal of the complaint as against defendants Michael Gersten and Larry Greenberg under CPLR 3211 (a) (8); and it is further

ORDERED that defendants' motion is granted to the extent that they are entitled to summary judgment dismissing the first cause of action as against defendant Mark M. Hoffman; and it is further

ORDERED that defendants' motion is granted to the extent that they are entitled to dismissal of the second cause of action; and it is further

ORDERED that plaintiff's motion for leave to amend the complaint is denied in its entirety; and it is further

ORDERED that the parties shall confer and complete a Preliminary Conference Stipulation and Order, which form is available online at http://www.nycourts.gov/courts/4jd/motion-terms-rules.shtml, and then submit the same to the Court within thirty (30) days of the date of this Decision and Order; and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been [*6]considered and is either moot or lacking in merit.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated June 17, 2019.^[FN5] Counsel for defendants is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry in accordance with CPLR 5513.