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STATE OF NEW YORK
SUPREME COURT: COUNTY OF ERIE
CHRISTINE J. GIAMBRA Hon. John B. Licata, JSC
and RICHARD J. GIAMBRA, JR.,
Plaintiffs, AFFIRMATION
-vs-
Index No. 813642/2022
GREAT LAKES MEDICAL IMAGING LLC,
JOHN OR JANE DOE, M.D.,
(Physician and/or physicians who interpreted and/or
Read the CT scan performed at Great Lakes Medical Imaging, LLC, on February 15, 2016),
SALAH ABDELHADI, M.D.,
MYRON PRAWWAK, D.O.,
JAMES FINALDI, M.D.
JOSEPH GRECO, M.D.,
WESTERN NEW YORK UROLOGY ASSOCIATES,
JAMES J. PANZARELLA, D.O.,
JOHN DOE PARTNERSHIP/CORPORATION,
(Group where James J. Panzarella, D.O. provided care
to plaintiff Christine Giambra)
ELIZABETH ALLEN, M.D.,
SUBURBAN WOMEN'S HEATHCARE, P.C.,
TRINITY MEDICAL WNY, P.C.,
CATHOLIC HEALTH SYSTEM, INC.,
JOHN OR JANE DOE- OBGYN,
(Physician and/or physicians who provided
OB/GYN care to plaintiff between 2016-2018),
JOHN DOE PARTNERSHIP/CORPORATION,
(whose members, employees and/or agents provided
OB/GYN care to plaintiff between 2016-2018),
Defendants.
J. Mark Gruber, states that he is an attorney at law duly licensed to practice his profession
in the courts of the State of New York and is a member of the law firm of ROACH, BROWN,
McCARTHY & GRUBER, P.C., attorneys for the Defendants, GREAT LAKES MEDICAL
IMAGING, LLC, JAMES FINALDI, M.D., JOSEPH M GRECO, M.D., WESTERN NEW
YORK UROLOGY ASSOCIATES, LLC, and JAMES J. PANZARELLA, D.O.
1. This Affirmation is submitted in opposition to Plaintiff's Order to Show Cause
seeking permission to: (1) amend the Complaint to substitute the Estate of Christine Giambra,
Deceased, as Plaintiff herein; (2) amend the Complaint to add a cause of action for the wrongful
death of Christine Giambra, Deceased; and (3) extend the time to effect service of the summons
and complaint on Defendants.
PROCEDURAL HISTORY
2. Upon information and belief, Plaintiffs commenced this action sounding in medical
malpractice by the filing of a Summons & Complaint on November 7, 2022. However, no Personal
Jurisdiction was ever established because Plaintiffs failed to serve any Defendants with process.
3. Upon information and belief, Plaintiff, Christine Giambra, died on November 8,
2022.
4. Upon information and belief, Plaintiff's spouse, Richard Giambra, Jr., was
appointed administrator of Plaintiff's estate on September 28, 2023.
5. Plaintiff filed an Order to Show Cause why the above mentioned relief should not
be granted. The Order was signed by this court on October 23, 2023.
6. Upon information and belief, to date, Plaintiffs have not served the Defendants with
a Summons and Complaint in this action. Defendants had no notice of this claim prior to being
served with this Order to Show Cause.
Plaintiffs' Plaintiffs'
7. Defendants oppose requests and seek dismissal of complaint
in its entirety.
I. This Court should Deny Plaintiff's Request for an Extension of Time to Serve the
Summons and Complaint.
2
Plaintiffs'
a. Time to Serve Defendants has expired, rendering this court without
jurisdiction over any defendant in this action.
heard."
8. "The fundamental requisite of due process of law is the opportunity to be
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (quoting Grannis v. Ordean,
234 U.S. 385, 394 (1914)). "This right to be heard has little reality or worth unless one is informed
that the matter is pending and can choose for himself whether to appear or default, acquiesce or
contest."
Mullane 339 U.S. at 314 (1950).
9. It is "'axiomatic that the failure to serve process in an action leaves the court
without personal jurisdiction over the defendant, and all subsequent proceedings are thereby
void.' " (2nd
rendered null and Elm Mgt. Corp. v. Sprung, 33 A.D.3d 753, 755 dept. 2006) (quoting
(2nd
McMullen v. Arnone, 79 A.D.2d 496, 499 dept. 1981)); See also Boser v. Burdick, 62 A.D.2d
(4th
1134, 1134 dept. 1978).
10. From the date of filing, a Plaintiff had 120 days to serve a defendant with the
summons and complaint. CPLR § 306-b; Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95,
101 (2001). If service is not made upon a defendant within that time, "the court, upon motion, shall
dismiss the action without prejudice as to that defendant, or upon good cause shown or in the
service."
interest of justice, extend the time for CPLR § 306-b. Since this Court cannot conduct
any proceedings in this matter until and unless there is a substitution, this Court cannot entertain a
motion to dismiss for lack of jurisdiction. It is the intention of the Defendants to file such a motion
at the appropriate, if necessary. Were these defendants able to do so at this time a cross motion
would have been filed.
11. Plaintiffs did not serve Defendants within the 120 day time period described in
CPLR § 306-b. Plaintiffs assert that they were not required to serve Defendants pursuant to CPLR
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§§ 1015 and 1022 because a stay had been automatically placed upon the action when the Plaintiff
died. Therefore, they reason that Plaintiffs were not required to serve Defendants until 15 days
after decedent's husband was appointed administrator of her estate on September 28, 2023, as
opposed to 120 days from the date of filing on November 7, 2022. Plaintiffs are mistaken. No
automatic stay absolved them of their statutory obligation to serve the Defendants within 120 days
of the commencement of this lawsuit. A stay of which divests the court of jurisdiction to conduct
proceedings has no effect upon the statutory requirement of timely service.
12. With respect to CPLR § 1015, Plaintiff is correct in arguing that in a properly
commenced lawsuit "the death of a party stays the action as to him or her pending the substitution
of a legal representative, and any determination rendered without such a substitution is generally
nullity." (2nd
deemed a Hicks v. Jeffrey, 304 A.D.2d 618, 618 dept. 2003); see CPLR § 1015 ; See
(4th
Giroux v. Dunlop Tire Corp., 16 A.D.3d 1068, 1069 dept. 2005). CPLR § 1015 effectuates a
stay because "[a] party's death 'divests a court of jurisdiction to conduct proceedings in an action
made...." 4th
until a proper substitution has been Giroux, 16 A.D.3d at 1069 ( dept. 2005).
jurisdiction,"
13. However, in order for a "party's death to divest a court of (Id.) the
court must have jurisdiction over the case in the first place. No such jurisdiction was established
in the present case because the Defendants were never served. Elm Mgt. Corp., 33 A.D.3d at 755
(2nd
dept. 2006); Boser v. Burdick, 62 A.D.2d at 1134 (4th dept. 1978). Additionally, it is a novel
argument in this state, to the Defendant's knowledge, to use CPLR § 1015 as a means to extend
the time for service.
14. Plaintiff's reliance on CPLR § 1022 is also misplaced. CPLR § 1022 states:
Unless the court orders otherwise, if the time for making a motion for a new trial
or for taking an appeal or for making a motion for permission to appeal or for taking
any other procedural step in the action has not expired before the occurrence of an
event permitting substitution of a party, the period is extended as to all parties until
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fifteen days after substitution is made, or, in case of dismissal of the action under
section 1021, is extended as to all parties until fifteen days after such dismissal.
The statute specifically recognizes situations in which the court already has jurisdiction over the
pending action (i.e. motions for a new trial and appeals). However, the statute is silent as to
situations where the court never had jurisdiction in the first place.
15. The Fourth Department's decision in Bertucci v. Mosey, 45 A.D.3d 1385 (2007) is
instructive in this matter. In Bertucci, a Defendant died prior to being served by the Plaintiff.
Plaintiff waited until Defendant had an administrator appointed before serving him, long after the
120 day period prescribed in CPLR § 306-b. The Fourth Department held that it was not improper
for the court to have granted an extension of time for service because the Defendant was already
on notice of the claim because other co-defendants had been served. Id. at 1387. As a result, they
determined the Defendant was not prejudiced. Id. The present case is easily distinguishable from
Bertucci because it is quite clear, as discussed more below, that the Defendants were not on notice
of the claim, the Plaintiffs have not met their burden to establish that their claim has merit, and the
Defendants are prejudiced by the delay in service. The Bertucci court also noted that while it was
"reasonable"
for the Plaintiffs to believe they were unable to conduct any action in the case until
substitution (which included service), it did not endorse this view or state that Plaintiffs were
correct in their belief. Id. Instead, the court's decision was premised upon the meritorious nature
of Plaintiff's claim and the lack of prejudice to Defendant due to their preexisting notice, through
other parties, of the claim against them. Id. Moreover, the court, in analyzing the 306-b factors,
analyzed the facts from the time the lawsuit was commenced, not 15 days from when an
administrator was appointed.
16. As outlined above, when deciding whether to allow an extension of time to
effectuate service, the court should consider the commencement date of November 7, 2022, as the
5
starting point of Plaintiff's time to effectuate service, as opposed to the September 28, 2023
substitution date that they assert.
b. 306-b Analysis
17. Plaintiffs had 120 days from the lawsuit's commencement on November 7, 2022 to
serve Defendants with process, thereby establishing personal jurisdiction. CPLR § 306-b; Elm Mgt.
(2nd
Corp., 33 A.D.3d at 755 dept. 2006); Boser v. Burdick, 62 A.D.2d at 1134 (4th dept. 1978).
This gave Plaintiffs until March 7, 2023 to serve Defendants. This Order to Show Cause will be
argued on November 15, 2023. At the time of oral argument, service will be 253 days late.
18. The Legislature gave the courts two separate standards by which to measure an
application for an extension of time to serve. Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d
cause."
95, 104 (2001). The first of which is for "good In order for a good cause extension to be
granted, a Plaintiff must make, as a threshold matter, reasonably diligent efforts at service. Id. at
103, 105. Given that it has been well over 120 days since the lawsuit's commencement and
Plaintiffs admit that no attempt at service have been made, Plaintiffs have not made a reasonably
diligent effort at service and an extension of time to serve Defendants based upon the good cause
plaintiffs'
standard should be denied. The mistaken belief that they could not obtain jurisdiction
over the defendants resulting in prejudice to the defendants, is not an excuse which can be used to
the detriment of the defendants right to prompt notice and due process.
19. The second standard by which a court can grant an extension of time to serve
process is in the interest of justice. Whether to grant an extension of time for service in the interest
of justice is a discretionary determination, requiring the court to engage in "a careful judicial
case"
analysis of the factual setting of the and balance competing interests. Leader, 97 N.Y.2d at
105 (2001). "[T]he court may consider diligence, or lack thereof, with other relevant
along any
. .
6
factor in making its determination, including the expiration of the Statute of Limitations, the
meritorious nature of the cause of action, the length of delay in service, the promptness of a
defendant[s]."
plaintiffs request for the extension of time, and prejudice to Leader, 97 N.Y.2d at
105-06 (2001). No one factor is more important than the others. Swaggard v. Dagonese, 132
(4th
A.D.3d 1395, 1396 Dept. 2015). Plaintiffs have addressed none of these factors, yet it is their
burden to show that an extension of time is warranted. Jimenez v. City of New York, 13 A.D.3d
(ISt
107, Dept. 2004) (motion for extension of time properly denied where Plaintiff failed to show
diligence, merit, there was no undue delay in service, or that he promptly requested the extension
of time.); See generally Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, (2001). Upon an
analysis of these factors, it is clear that the Plaintiff should not be permitted an extension of time
to serve the Defendants in the interest of justice.
i. Diligence
20. Failure to bring forth evidence that Plaintiffs even attempted to serve Defendants
during the 120 day period since the commencement of the lawsuit weighs heavily in favor of
denying a motion to extend the time to effect service. See Delaware Operations Assocs. LLC v.
(4th
New York State Dep't of Health, 187 A.D.3d 1560, 1561 Dept. 2020). Plaintiffs have not made
a diligent effort, or even any effort, in serving Defendants in the present matter. This factor weighs
against granting their extension request.
ii. Statute of Limitations.
Plaintiffs'
21. complaint states that the "medical care and treatment rendered to
performed,"
Plaintiff, Christine J. Giambra, was negligently, carelessly, and unskillfully and "due
to the negligence of the Defendant[s], Plaintiff Christine J. Giambra has been rendered sick, sore,
lame, and disabled, had been and will be unable to perform her usual duties and has been
7
damaged...". Plaintiff's Complaint ¶ ¶ 18, 20. The statute of limitations for a medical malpractice
claim is two years and six months. CPLR § 214-a. The latest any physician provided care to
"2018."
Plaintiff, as outlined in their complaint, is stated generally as Assuming, for arguments
sake, that the last time Plaintiff was provided care by all of the Defendants was December 31,
2018, the statute of limitations would have run on February 15, 2022, taking into account the Covid
tolling that occurred from March 20, 2020 until November 3, 2020. See Little v. Steelcase, Inc.,
(4th (1st
206 A.D.3d 1597, 1600 dept. 2022); See also Murphy v. Harris, 210 A.D.3d 410, 411,
dept. 2022) (causes of action were tolled from March 20, 2020 until November 3, 2020). When
the present action was filed on November 7, 2022, the statute of limitations had expired at least
265 days prior. Therefore, this determinative factor not only weighs in favor of denying Plaintiff's
Plaintiffs'
motion for an extension of time to effectuate service, but in favor of dismissal of
1
Complaint in its entirety.
iii. Merit to Claim
Plaintiffs'
22. In addition to statute of limitations deficiencies, Plaintiffs have failed to
Plaintiffs'
meet their burden to demonstrate that their claim has merit. have submitted no evidence
(2nd
in support of their claim. See Wilbyfont v. New York Presbyterian Hosp., 131 A.D.3d 605, 607
dept. 2015) (Analyzing the factors under 306-b, "Plaintiff failed to demonstrate a potentially
appellant"
meritorious medical malpractice cause of action against the and thus this factor weighed
(2nd
in favor is dismissal); See also Umana v. Sofola, 149 A.D.3d 1138, 1140, dept. 2017); Hourie
(2nd
v. N Shore-Long Island Jewish Health Sys., 150 A.D.3d 707, 709 dept. 2017). It is not
1
Under New York law, a wrongful death claim is timely only if, at the time of the decedent's death, the statute of
limitations had not yet run on the decedent's action for personal injury. E.g., Kelliher v. New York Cent. & H.H.R.
Co., 212 N.Y. 207, 212-213, (1914); Lanni v. Sekar, 249 A.D.2d 515,516 (2d Dep't 1, 1998) ('[1]f the Statute of Limitat
ons has expired on the underlying cause of action to recover damages for personal injuries ..., the wrongful death
time-barred.'
cause of action is also Because the statute of limitations has expired on Plaintiff's underlying claim,
their wrongful death action should also be dismissed.
8
sufficient to merely assert in an attorney affidavit that the present case has merit, it must be
accompanied by evidentiary facts from one having personal knowledge of the merits of the claim.
(2nd
Juseinoski v. Bd. of Educ. of City of New York, 15 A.D.3d 353, 356, dept. 2005); See also
(2nd
Byner v. Murray-Taylor, 208 A.D.3d 1214, 1216 dept. 2022). While Plaintiffs in this case
have attached an Affidavit, purportedly by a physician, this "redacted portion of a report attributed
to an unidentified medical expert, submitted by plaintiffs with their [motion], was unsigned and
(3rd
unsworn and therefore lack[s] probative value. Hine v. Bambara, 66 A.D.3d 1192, 1193 dept.
Plaintiffs'
2009). For this reason, unsigned, redacted Affidavit has no effect. Moreover, Plaintiff's
attorney's affidavit of merit suffers the same fate. "The affirmation of an attorney which does not
contain evidentiary facts from one having personal knowledge is insufficient to establish the merits
(2nd
of a claim. Juseinoski v. Bd. of Educ. of City of New York, 15 A.D.3d 353, 356, dept. 2005);
(2nd
See also Byner v. Murray-Taylor, 208 A.D.3d 1214, 1216 dept. 2022). Neither
affidavit/affirmation constitutes an affidavit of merit, and Plaintiffs submits no other proof of the
merit of their claim. Not only does such a failure weigh against granting the request for an
extension of time to effectuate service and substitute parties, it also warrants dismissal. As the
proponent seeking relief from the court there is no authority for the plaintiff to redact the name,
details of the execution of the affidavit and other information from the affidavit. The purported
physician states that he reviewed medical records, but no medical records are submitted in support
of the application to the court. A bare conclusory affidavit which fails to identify a single deviation
from care or identify a single healthcare provider by name is wholly insufficient as an "affidavit
merit."
of The records allegedly reviewed are those specialists in radiology, OB/GYN and
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STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE CHRISTINE J. GIAMBRA Hon. John B. Licata, JSC and RICHARD J. GIAMBRA, JR., Plaintiffs, AFFIRMATION -vs- Index No. 813642/2022 GREAT LAKES MEDICAL IMAGING LLC, JOHN OR JANE DOE, M.D., (Physician and/or physicians who interpreted and/or Read the CT scan performed at Great Lakes Medical Imaging, LLC, on February 15, 2016), SALAH ABDELHADI, M.D., MYRON PRAWWAK, D.O., JAMES FINALDI, M.D. JOSEPH GRECO, M.D., WESTERN NEW YORK UROLOGY ASSOCIATES, JAMES J. PANZARELLA, D.O., JOHN DOE PARTNERSHIP/CORPORATION, (Group where James J. Panzarella, D.O. provided care to plaintiff Christine Giambra) ELIZABETH ALLEN, M.D., SUBURBAN WOMEN'S HEATHCARE, P.C., TRINITY MEDICAL WNY, P.C., CATHOLIC HEALTH SYSTEM, INC., JOHN OR JANE DOE- OBGYN, (Physician and/or physicians who provided OB/GYN care to plaintiff between 2016-2018), JOHN DOE PARTNERSHIP/CORPORATION, (whose members, employees and/or agents provided OB/GYN care to plaintiff between 2016-2018), Defendants. J. Mark Gruber, states that he is an attorney at law duly licensed to practice his profession in the courts of the State of New York and is a member of the law firm of ROACH, BROWN, McCARTHY & GRUBER, P.C., attorneys for the Defendants, GREAT LAKES MEDICAL IMAGING, LLC, JAMES FINALDI, M.D., JOSEPH M GRECO, M.D., WESTERN NEW YORK UROLOGY ASSOCIATES, LLC, and JAMES J. PANZARELLA, D.O. 1. This Affirmation is submitted in opposition to Plaintiff's Order to Show Cause seeking permission to: (1) amend the Complaint to substitute the Estate of Christine Giambra, Deceased, as Plaintiff herein; (2) amend the Complaint to add a cause of action for the wrongful death of Christine Giambra, Deceased; and (3) extend the time to effect service of the summons and complaint on Defendants. PROCEDURAL HISTORY 2. Upon information and belief, Plaintiffs commenced this action sounding in medical malpractice by the filing of a Summons & Complaint on November 7, 2022. However, no Personal Jurisdiction was ever established because Plaintiffs failed to serve any Defendants with process. 3. Upon information and belief, Plaintiff, Christine Giambra, died on November 8, 2022. 4. Upon information and belief, Plaintiff's spouse, Richard Giambra, Jr., was appointed administrator of Plaintiff's estate on September 28, 2023. 5. Plaintiff filed an Order to Show Cause why the above mentioned relief should not be granted. The Order was signed by this court on October 23, 2023. 6. Upon information and belief, to date, Plaintiffs have not served the Defendants with a Summons and Complaint in this action. Defendants had no notice of this claim prior to being served with this Order to Show Cause. Plaintiffs' Plaintiffs' 7. Defendants oppose requests and seek dismissal of complaint in its entirety. I. This Court should Deny Plaintiff's Request for an Extension of Time to Serve the Summons and Complaint. 2 Plaintiffs' a. Time to Serve Defendants has expired, rendering this court without jurisdiction over any defendant in this action. heard." 8. "The fundamental requisite of due process of law is the opportunity to be Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). "This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Mullane 339 U.S. at 314 (1950). 9. It is "'axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby void.' " (2nd rendered null and Elm Mgt. Corp. v. Sprung, 33 A.D.3d 753, 755 dept. 2006) (quoting (2nd McMullen v. Arnone, 79 A.D.2d 496, 499 dept. 1981)); See also Boser v. Burdick, 62 A.D.2d (4th 1134, 1134 dept. 1978). 10. From the date of filing, a Plaintiff had 120 days to serve a defendant with the summons and complaint. CPLR § 306-b; Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101 (2001). If service is not made upon a defendant within that time, "the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the service." interest of justice, extend the time for CPLR § 306-b. Since this Court cannot conduct any proceedings in this matter until and unless there is a substitution, this Court cannot entertain a motion to dismiss for lack of jurisdiction. It is the intention of the Defendants to file such a motion at the appropriate, if necessary. Were these defendants able to do so at this time a cross motion would have been filed. 11. Plaintiffs did not serve Defendants within the 120 day time period described in CPLR § 306-b. Plaintiffs assert that they were not required to serve Defendants pursuant to CPLR 3 §§ 1015 and 1022 because a stay had been automatically placed upon the action when the Plaintiff died. Therefore, they reason that Plaintiffs were not required to serve Defendants until 15 days after decedent's husband was appointed administrator of her estate on September 28, 2023, as opposed to 120 days from the date of filing on November 7, 2022. Plaintiffs are mistaken. No automatic stay absolved them of their statutory obligation to serve the Defendants within 120 days of the commencement of this lawsuit. A stay of which divests the court of jurisdiction to conduct proceedings has no effect upon the statutory requirement of timely service. 12. With respect to CPLR § 1015, Plaintiff is correct in arguing that in a properly commenced lawsuit "the death of a party stays the action as to him or her pending the substitution of a legal representative, and any determination rendered without such a substitution is generally nullity." (2nd deemed a Hicks v. Jeffrey, 304 A.D.2d 618, 618 dept. 2003); see CPLR § 1015 ; See (4th Giroux v. Dunlop Tire Corp., 16 A.D.3d 1068, 1069 dept. 2005). CPLR § 1015 effectuates a stay because "[a] party's death 'divests a court of jurisdiction to conduct proceedings in an action made...." 4th until a proper substitution has been Giroux, 16 A.D.3d at 1069 ( dept. 2005). jurisdiction," 13. However, in order for a "party's death to divest a court of (Id.) the court must have jurisdiction over the case in the first place. No such jurisdiction was established in the present case because the Defendants were never served. Elm Mgt. Corp., 33 A.D.3d at 755 (2nd dept. 2006); Boser v. Burdick, 62 A.D.2d at 1134 (4th dept. 1978). Additionally, it is a novel argument in this state, to the Defendant's knowledge, to use CPLR § 1015 as a means to extend the time for service. 14. Plaintiff's reliance on CPLR § 1022 is also misplaced. CPLR § 1022 states: Unless the court orders otherwise, if the time for making a motion for a new trial or for taking an appeal or for making a motion for permission to appeal or for taking any other procedural step in the action has not expired before the occurrence of an event permitting substitution of a party, the period is extended as to all parties until 4 fifteen days after substitution is made, or, in case of dismissal of the action under section 1021, is extended as to all parties until fifteen days after such dismissal. The statute specifically recognizes situations in which the court already has jurisdiction over the pending action (i.e. motions for a new trial and appeals). However, the statute is silent as to situations where the court never had jurisdiction in the first place. 15. The Fourth Department's decision in Bertucci v. Mosey, 45 A.D.3d 1385 (2007) is instructive in this matter. In Bertucci, a Defendant died prior to being served by the Plaintiff. Plaintiff waited until Defendant had an administrator appointed before serving him, long after the 120 day period prescribed in CPLR § 306-b. The Fourth Department held that it was not improper for the court to have granted an extension of time for service because the Defendant was already on notice of the claim because other co-defendants had been served. Id. at 1387. As a result, they determined the Defendant was not prejudiced. Id. The present case is easily distinguishable from Bertucci because it is quite clear, as discussed more below, that the Defendants were not on notice of the claim, the Plaintiffs have not met their burden to establish that their claim has merit, and the Defendants are prejudiced by the delay in service. The Bertucci court also noted that while it was "reasonable" for the Plaintiffs to believe they were unable to conduct any action in the case until substitution (which included service), it did not endorse this view or state that Plaintiffs were correct in their belief. Id. Instead, the court's decision was premised upon the meritorious nature of Plaintiff's claim and the lack of prejudice to Defendant due to their preexisting notice, through other parties, of the claim against them. Id. Moreover, the court, in analyzing the 306-b factors, analyzed the facts from the time the lawsuit was commenced, not 15 days from when an administrator was appointed. 16. As outlined above, when deciding whether to allow an extension of time to effectuate service, the court should consider the commencement date of November 7, 2022, as the 5 starting point of Plaintiff's time to effectuate service, as opposed to the September 28, 2023 substitution date that they assert. b. 306-b Analysis 17. Plaintiffs had 120 days from the lawsuit's commencement on November 7, 2022 to serve Defendants with process, thereby establishing personal jurisdiction. CPLR § 306-b; Elm Mgt. (2nd Corp., 33 A.D.3d at 755 dept. 2006); Boser v. Burdick, 62 A.D.2d at 1134 (4th dept. 1978). This gave Plaintiffs until March 7, 2023 to serve Defendants. This Order to Show Cause will be argued on November 15, 2023. At the time of oral argument, service will be 253 days late. 18. The Legislature gave the courts two separate standards by which to measure an application for an extension of time to serve. Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d cause." 95, 104 (2001). The first of which is for "good In order for a good cause extension to be granted, a Plaintiff must make, as a threshold matter, reasonably diligent efforts at service. Id. at 103, 105. Given that it has been well over 120 days since the lawsuit's commencement and Plaintiffs admit that no attempt at service have been made, Plaintiffs have not made a reasonably diligent effort at service and an extension of time to serve Defendants based upon the good cause plaintiffs' standard should be denied. The mistaken belief that they could not obtain jurisdiction over the defendants resulting in prejudice to the defendants, is not an excuse which can be used to the detriment of the defendants right to prompt notice and due process. 19. The second standard by which a court can grant an extension of time to serve process is in the interest of justice. Whether to grant an extension of time for service in the interest of justice is a discretionary determination, requiring the court to engage in "a careful judicial case" analysis of the factual setting of the and balance competing interests. Leader, 97 N.Y.2d at 105 (2001). "[T]he court may consider diligence, or lack thereof, with other relevant along any . . 6 factor in making its determination, including the expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a defendant[s]." plaintiffs request for the extension of time, and prejudice to Leader, 97 N.Y.2d at 105-06 (2001). No one factor is more important than the others. Swaggard v. Dagonese, 132 (4th A.D.3d 1395, 1396 Dept. 2015). Plaintiffs have addressed none of these factors, yet it is their burden to show that an extension of time is warranted. Jimenez v. City of New York, 13 A.D.3d (ISt 107, Dept. 2004) (motion for extension of time properly denied where Plaintiff failed to show diligence, merit, there was no undue delay in service, or that he promptly requested the extension of time.); See generally Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, (2001). Upon an analysis of these factors, it is clear that the Plaintiff should not be permitted an extension of time to serve the Defendants in the interest of justice. i. Diligence 20. Failure to bring forth evidence that Plaintiffs even attempted to serve Defendants during the 120 day period since the commencement of the lawsuit weighs heavily in favor of denying a motion to extend the time to effect service. See Delaware Operations Assocs. LLC v. (4th New York State Dep't of Health, 187 A.D.3d 1560, 1561 Dept. 2020). Plaintiffs have not made a diligent effort, or even any effort, in serving Defendants in the present matter. This factor weighs against granting their extension request. ii. Statute of Limitations. Plaintiffs' 21. complaint states that the "medical care and treatment rendered to performed," Plaintiff, Christine J. Giambra, was negligently, carelessly, and unskillfully and "due to the negligence of the Defendant[s], Plaintiff Christine J. Giambra has been rendered sick, sore, lame, and disabled, had been and will be unable to perform her usual duties and has been 7 damaged...". Plaintiff's Complaint ¶ ¶ 18, 20. The statute of limitations for a medical malpractice claim is two years and six months. CPLR § 214-a. The latest any physician provided care to "2018." Plaintiff, as outlined in their complaint, is stated generally as Assuming, for arguments sake, that the last time Plaintiff was provided care by all of the Defendants was December 31, 2018, the statute of limitations would have run on February 15, 2022, taking into account the Covid tolling that occurred from March 20, 2020 until November 3, 2020. See Little v. Steelcase, Inc., (4th (1st 206 A.D.3d 1597, 1600 dept. 2022); See also Murphy v. Harris, 210 A.D.3d 410, 411, dept. 2022) (causes of action were tolled from March 20, 2020 until November 3, 2020). When the present action was filed on November 7, 2022, the statute of limitations had expired at least 265 days prior. Therefore, this determinative factor not only weighs in favor of denying Plaintiff's Plaintiffs' motion for an extension of time to effectuate service, but in favor of dismissal of 1 Complaint in its entirety. iii. Merit to Claim Plaintiffs' 22. In addition to statute of limitations deficiencies, Plaintiffs have failed to Plaintiffs' meet their burden to demonstrate that their claim has merit. have submitted no evidence (2nd in support of their claim. See Wilbyfont v. New York Presbyterian Hosp., 131 A.D.3d 605, 607 dept. 2015) (Analyzing the factors under 306-b, "Plaintiff failed to demonstrate a potentially appellant" meritorious medical malpractice cause of action against the and thus this factor weighed (2nd in favor is dismissal); See also Umana v. Sofola, 149 A.D.3d 1138, 1140, dept. 2017); Hourie (2nd v. N Shore-Long Island Jewish Health Sys., 150 A.D.3d 707, 709 dept. 2017). It is not 1 Under New York law, a wrongful death claim is timely only if, at the time of the decedent's death, the statute of limitations had not yet run on the decedent's action for personal injury. E.g., Kelliher v. New York Cent. & H.H.R. Co., 212 N.Y. 207, 212-213, (1914); Lanni v. Sekar, 249 A.D.2d 515,516 (2d Dep't 1, 1998) ('[1]f the Statute of Limitat ons has expired on the underlying cause of action to recover damages for personal injuries ..., the wrongful death time-barred.' cause of action is also Because the statute of limitations has expired on Plaintiff's underlying claim, their wrongful death action should also be dismissed. 8 sufficient to merely assert in an attorney affidavit that the present case has merit, it must be accompanied by evidentiary facts from one having personal knowledge of the merits of the claim. (2nd Juseinoski v. Bd. of Educ. of City of New York, 15 A.D.3d 353, 356, dept. 2005); See also (2nd Byner v. Murray-Taylor, 208 A.D.3d 1214, 1216 dept. 2022). While Plaintiffs in this case have attached an Affidavit, purportedly by a physician, this "redacted portion of a report attributed to an unidentified medical expert, submitted by plaintiffs with their [motion], was unsigned and (3rd unsworn and therefore lack[s] probative value. Hine v. Bambara, 66 A.D.3d 1192, 1193 dept. Plaintiffs' 2009). For this reason, unsigned, redacted Affidavit has no effect. Moreover, Plaintiff's attorney's affidavit of merit suffers the same fate. "The affirmation of an attorney which does not contain evidentiary facts from one having personal knowledge is insufficient to establish the merits (2nd of a claim. Juseinoski v. Bd. of Educ. of City of New York, 15 A.D.3d 353, 356, dept. 2005); (2nd See also Byner v. Murray-Taylor, 208 A.D.3d 1214, 1216 dept. 2022). Neither affidavit/affirmation constitutes an affidavit of merit, and Plaintiffs submits no other proof of the merit of their claim. Not only does such a failure weigh against granting the request for an extension of time to effectuate service and substitute parties, it also warrants dismissal. As the proponent seeking relief from the court there is no authority for the plaintiff to redact the name, details of the execution of the affidavit and other information from the affidavit. The purported physician states that he reviewed medical records, but no medical records are submitted in support of the application to the court. A bare conclusory affidavit which fails to identify a single deviation from care or identify a single healthcare provider by name is wholly insufficient as an "affidavit merit." of The records allegedly reviewed are those specialists in radiology, OB/GYN and