Mapp v Vasyukevich

Supreme Court, Kings County

Decided on June 1, 2026

Index No. 504/2026

Aaron D. Maslow, J.

The following papers were used on this motion: order to show cause, affidavits, RJI, summons with notice, verified complaint, poor person order and affidavit, and affidavit of service.

Upon the foregoing papers, having heard oral argument^FN1, and due deliberation having been had, the within motion is determined as follows.

Background

Plaintiff Dimita Mapp commenced this action, seeking damages for alleged medical malpractice. She makes claims about several individuals, suggesting a conspiracy with Defendant Dr. Konstantin Vasyukevich. Essentially, Plaintiff claims that Defendant failed to provide a proper pre-operative conference, performed surgery (the wrong procedure) without consent, injected her with an unknown substance, and provided no post-operative aid. Plaintiff contends that Defendant left her with severe surgical trauma in the form of thermal burns.

Plaintiff now moves by order to show cause (1) to remove and transfer the within action [*2]from Kings County Civil Court to Supreme Court, Kings County, (2) for leave to amend the complaint pursuant to CPLR 3025 to include causes of action for breach of contract, civil battery, fraudulent concealment, and forgery of informed consent, and to increase the ad damnum clause, and (3) to stay all proceedings in the Civil Court.

Discussion

Plaintiff appeared for oral argument. Defendant did not. The Court reviewed the affirmation of service submitted by Plaintiff. The affirmation is by Miguel Carrion, who attested that on May 22, 2026, at 11:25 a.m., he served a true copy of the order to show cause, affidavit of emergency, and affidavit in support, by personally delivering them to "Jovannah" at 59 East 79th Street, New York, NY 10075. Jovannah was described as a white female, 5'4"-5'8" tall, 100-130 lbs., 21-34 years of age, with blonde/brown hair with highlights. The Court noted during oral argument that the affirmation of service lacked any reference to service by mail.

The order to show cause, signed on May 13, 2026, by Hon. Ingrid Joseph, J.S.C., directed that personal service on Defendant could be made by May 22, 2026.

Where an order to show cause specifies that personal service is to be made, "any of the four methods of personal service enumerated in CPLR 308 would be sufficient to confer jurisdiction" (Rothkopf v Rothkopf, 191 AD2d 685, 686 [2d Dept 1993]). The four modalities of personal service provided for in CPLR 308 are in-hand delivery to the intended recipient (see CPLR 308 [1]); delivery 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 is from an attorney or concerns an action against the person to be served" (CPLR 308 [2]); delivery to the intended recipient's agent designated under CPLR 318 (see CPLR 308 [3]); and, where service under the three foregoing provisions cannot be made with due diligence, "by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person 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 is from an attorney or concerns an action against the person to be served" (see CPLR 308 [4]).

The connection between Jovannah and Defendant was not elucidated by the process server. It is not explained whether the address at which service was made is the actual place of business, dwelling place or usual place of abode of Defendant. Assuming arguendo that Jovannah is a person of suitable age and discretion, the additional service by first-class mail required by CPLR 308 (2) was not effectuated.

In Serrao v Slope Serv. (223 AD3d 927, 927-928 [2d Dept 2024]), the Appellate Division held as follows:

The Supreme Court denied the motion due to, inter alia, the plaintiff's failure to submit an affidavit of service to document that he personally served the defendant with the order to [*3]show cause and supporting papers as directed by the court. The plaintiff appeals.

CPLR 2214 (d) provides that a "court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein." The absence of proper service of an order to show cause deprives the court of jurisdiction to entertain the motion (see Young v City of New York, 164 AD3d 711, 713 [2018]; Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d 964, 965 [2012]). However, the court has the power to disregard a technical defect in service when no substantial right of the opposing party is prejudiced (see CPLR 2001; Ruffin v Lion Corp., 15 NY3d 578, 582 [2010]; Young v City of New York, 164 AD3d at 713). "In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be 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" (Ruffin v Lion Corp., 15 NY3d at 582 [internal quotation marks omitted]).

Here, the Supreme Court properly denied the plaintiff's motion due to the plaintiff's failure to personally serve the order to show cause as directed by the court. The plaintiff's failure to serve the order to show cause in compliance with the court's directive was not a mere "technical infirmity" that may be overlooked by the court pursuant to CPLR 2001 (Ruffin v Lion Corp., 15 NY3d at 582 [internal quotation marks omitted]; see Estate of Perlman v Kelley, 175 AD3d 1249, 1251 [2019]).

Consistent with Serrao v Slope Serv., the Court finds that the failure by Plaintiff to effectuate proper personal service on Defendant in accordance with CPLR 308 (1), (2), (3), or (4) constitutes a defect depriving the Court of jurisdiction to entertain the motion brought on by order to show cause. The failure to comply with the legal provisions governing service on Defendant violated the principle that notice to the intended person be made in a manner reasonably calculated, under all the circumstances, to apprise him of the pendency of the motion. This is not a mere technical matter; obviously it is substantive as is evidenced by the fact that Defendant did not appear. Defendant was deprived of the opportunity to present his objections to the relief sought by Plaintiff.

To the extent that Plaintiff claims she was provided with incorrect advice regarding service of the order to show cause and supporting papers, the Court finds this assertion legally insufficient (see Matter of Smith v Mahoney, 60 NY2d 596 [1983]; Matter of Furlong v Haight, 238 AD3d 815 [2d Dept 2025] ["forms and information published by the Board did not relieve the petitioners from their duty to comply with statutory mandates"]).

Conclusion

Accordingly, it is hereby ORDERED that Plaintiff's motion herein is DENIED.