Preview
FILED: KINGS COUNTY CLERK 04/15/2024
02/16/2024 02:50
02:31 PM INDEX NO. 501066/2022
NYSCEF DOC. NO. 83
75 RECEIVED NYSCEF: 04/15/2024
02/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------------------X
ANGEL MONTANEZ,
Plaintiff,
Index No.: 501066/2022
-against-
ORDER WITH NOTICE OF
ENTRY
THE CITY OF NEW YORK; THE NEW YORK CITY
HEALTH and HOSPITAL CORPORATION; KINGS
COUNTY HOSPITAL CENTER; KAPADIA, PT;
JEFFREY SCHWARTZ, MD; JASON BAJAJ, MD;
JAMES DORAN, MD; NISHANT SUNEJA, MD;
DONALD DOUKAS, MD; NICHOLAS STREKAS, MD;
MICHAEL ROSE, MD; VIDUSHAN, NADARAJAH,
MD; QAIS NAZIRI, MD; and John and Jane Does 1-6
being other unknown, unnamed Defendants,
Defendants.
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PLEASE TAKE NOTICE, that the within is a true copy of the Decision and Order, dated
February 16, 2024, executed by the Honorable Consuelo Mallafre Melendez, and duly entered in
the within entitled action and filed in the office of the Clerk of the within named Court on February
16, 2024.
Dated: New York, New York
February 16, 2024
Yours, etc.
FURMAN KORNFELD & BRENNAN LLP
By: Tracy S. Katz
Tracy S. Katz
Attorneys for Defendant
Shaili Kapadia, PT
88 Pine St, 32nd Floor
New York, NY 10005
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Tel.: (212) 867 - 4100
FKB File No.: 111.116
To: Via NYSCEF
G. WESLEY SIMPSON, P.C.,
Attorneys for Plaintiff
ANGEL MONTANEZ
1016 Ralph Avenue, 1st Floor
Brooklyn, New York 11236
Tel: 718-345-8213
Fax: 718-345-3995
VIGORITO BARKER PATTERSON NICOHLS & PORTER LLP
Attorneys for Defendants
NEW YORK HEALTH AND HOSPITAL
CENTER, JEFFREY SCHWARTZ, M.D.,
JASON BAJAJ, M.D., NISHANT SUNEJA,
M.D., DONALD DOUKAS, M.D., NICHOLAS
STEKAS, M.D., MICHAEL ROSE, M.D.,
VIDUSHAN NADARAJAH, M.D., QAIS
NAZIRI, M.D.
420 Lexington Avenue, Suite 219
New York, NY 10170
Tel: 914-495-4808
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NYSCEF DOC. NO. 83
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02/16/2024
At an IAS Term, Part 15 of the Supreme Court of the State of NY,
held in and for the County of Kings, at the Courthouse, at 360
Adams Street, Brooklyn, New York, on the 2nd day of February
2024.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ANGEL MONTANEZ, DECISION & ORDER
Plaintiff, Index No. 501066/2022
Mo. Seq. 2 & 3
-against-
THE CITY OF NEW YORK; THE NEW YORK CITY
HEALTH AND HOSPITAL CORPORATION; KINGS
COUNTY HOSPITAL; KAPADIA, PT; JEFFREY
SCHWARTZ, MD; JASON BAJAJ, MD; JAMES DORAN,
MD; NISHANT SUNEJA, MD; DONALD DOUKAS, MD;
NICHOLAS STEKAS, MD; MICHAEL ROSE, MD;
VIDUSHAN NADARAJAH, MD; QAIS NAZIRI, MD; and
John Doe and Jane Doe 1 through 6 being other unknown and
unnamed defendants,
Defendants.
--------------------------------------------------------------------------X
HON. CONSUELO MALLAFRE MELENDEZ, J.S.C.
Recitation, as required by CPLR §2219 [a], of the papers considered in the review:
NYSCEF #s: 52 – 57, 62 – 72
Defendant Shaili Kapadia, PT s/h/a Kapadia, PT (“Kapadia”) moves for an Order, pursuant to CPLR 5015
(a) (4), to vacate the default judgment rendered against said defendant on May 30, 2023, and for an Order, pursuant
to CPLR 3211 (a) (8), dismissing Plaintiff’s action as against Kapadia for failure to obtain personal jurisdiction;
and Plaintiff cross moves for an Order, pursuant to CPLR 306-b, extending Plaintiff’s time to serve the summons
and complaint, and permitting Plaintiff to serve Kapadia through his counsel.
Plaintiff commenced this action on January 12, 2022, for alleged medical malpractice against multiple
defendants. In an affidavit of service, process server Terence Kelly (“Kelly”) averred that he affixed a copy of
the summons and complaint to the door of Kapadia’s “usual place of abode” at 109 West Marie Street, Hicksville,
New York, on May 12, 2022, at 7:25 p.m. Kelly served the summons and complaint by mail to the same address
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on the same date. The affidavit of service also sets forth that Kelly made one prior attempt to serve Kapadia on
May 12, 2022, at 12:20 p.m. at the same address.
Kapadia did not interpose an answer, and Plaintiff moved for a default judgment pursuant to CPLR 3215
(a). Default judgment was granted against Kapadia on May 30, 2023.
In support of the instant motion to vacate the default judgment and dismiss the complaint, Kapadia submits
a personal affidavit stating that he moved from 109 West St. Marie Street to the state of Maryland in February
2022, and he no longer resided at the address where service was attempted on May 12, 2022. Kapadia also argues
that Plaintiff failed to show due diligence before resorting to CPLR 308 (4) “nail and mail” service.
Under CPLR 308 (4), personal jurisdiction may be obtained over a natural person by affixing the summons
to the door of the person’s dwelling place or usual place of abode, and mailing the summons to their last known
residence, but this service is only authorized when “service under paragraphs one and two cannot be made with
due diligence.” “The due diligence requirement of CPLR 308 (4) must be strictly observed, given the reduced
likelihood that a summons served pursuant to that section will be received” (County of Nassau v Letosky, 34
AD3d 414, 415 [2d Dept 2006], quoting Gurevitch v Goodman, 269 AD2d 355 [2d Dept 2000]). Due diligence
“may be satisfied with a few visits on different occasions and at different times to the defendant’s residence or
place of business when the defendant could reasonably be expected to be found at such location at those times”
(Estate of Waterman v Jones, 46 AD3d 63, 66 [2d Dept 2007]). Generally, the affidavit of service must set forth
the details of these attempts, so that the court may determine whether due diligence has been exercised on a case-
by-case basis (see Barnes v City of New York, 51 NY2d 906 [1980]). A plaintiff fails to show due diligence where,
for example, two of the three attempts were made on weekdays during business hours (County v Nassau, at 415).
Here, Kelly’s affidavit fails to establish that due diligence was exercised before Plaintiff resorted to “nail
and mail” service under CPLR 308 (4). Based on the submissions, the process server made only one attempt to
serve Kapadia at his alleged dwelling place on a Thursday at 12:20 p.m. Seven hours later, the summons and
complaint were affixed to the door. While due diligence is evaluated based on quality and not quantity of attempts
(see McSorley v Spear, 50 AD3d 652 [2d Dept 2008], citing Estate of Waterman), paying two visits to the home
on a single day, once during typical business hours, is clearly insufficient in both quality and quantity.
Accordingly, service of the summons and complaint on Kapadia was improper, and the default judgment
dated May 30, 2023, is vacated for lack of personal jurisdiction. Where service was never properly effectuated,
the defendant need not show a meritorious defense or excuse for the default (see CPLR 5015 [a] [4]). “In those
instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered
null and void” (Washington Mut. Bank v Murphy, 127 AD3d 1167 [2d Dept 2015]).
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CPLR 306-b provides that the court may extend the time for service upon good cause shown or in the
interest of justice. “‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards”
(Bumpus v New York City Tr. Auth., 66 AD3d 26, 31 [2d Dept 2009]). Good cause does not exist where plaintiff
failed to make “at least a reasonably diligent effort at service,” but rather where the “failure to timely serve process
is a result of circumstances beyond plaintiff’s control” (id.). However, if good cause is not established, courts
may also consider other factors in the interest of justice, including “the expiration of the statute of limitations, the
meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an
extension, and prejudice to the defendant” (id., at 32; see also Leader v Maroney, 97 NY2d 95, 106 n 3 [2001]).
Here, despite Plaintiff’s insufficient “due diligence” efforts under CPLR 308 (4), Plaintiff did apparently
make a good faith attempt to affix the summons and complaint to the door and mail the summons and complaint
to the address they believed was Kapadia’s place of abode, unaware he no longer resided there, within the 120-
day period after the action was commenced. Even if Plaintiff’s failure to properly serve Kapadia did not constitute
good cause, the interest of justice standard is intentionally broader “to accommodate late service that might be
due to mistake, confusion or oversight, so long as there is no prejudice to the defendant” (Leader, at 105). Because
the statute of limitations has since expired, Plaintiff would be left without a remedy against Kapadia if the action
is dismissed due to the deficiencies in his affidavit of service. Plaintiff has established a meritorious cause of
action through his verified complaint. Although the nearly two-year delay since the time for service expired is a
lengthy one, Plaintiff brought this cross-motion to request an extension of time in response to Kapadia’s motion.
In light of the previously granted default judgment motion, this was the first time Plaintiff’s counsel was
reasonably aware that service was defective, and his cross-motion was prompt and timely. There is no showing
of any prejudice to the defendant that would result from the extension of time. Finally, the strong public policy in
favor of resolving cases on the merits weighs in favor of vacating the default judgment against Kapadia but also
allowing Plaintiff an extension of time rather than dismissing the action. For these reasons, Plaintiff’s cross-
motion to extend his time to serve the summons and complaint upon Kapadia is granted.
Accordingly, it is hereby:
ORDERED that the branch of Kapadia’s motion (Seq. No. 2) seeking an Order, pursuant to CPLR 5015
(a) (4), to vacate the default judgment rendered against said defendant on May 30, 2023, is GRANTED; and it is
further
ORDERED that the branch of Kapadia’s motion seeking an Order, pursuant to CPLR 3211 (a) (8),
dismissing Plaintiff’s action as against Kapadia, is DENIED; and it is further
ORDERED that Plaintiff’s cross-motion (Seq. No. 3) seeking an Order, pursuant to CPLR 306-b,
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extending Plaintiff’s time to serve the summons and complaint, is GRANTED; and it is further
ORDERED that within 30 days of the entry of this Order to NYSCEF, Plaintiff shall serve the summons
and complaint on Kapadia in accordance with CPLR 308, and shall also serve Kapadia’s counsel by mail, and file
proof of such service.
This constitutes the decision and order of this Court.
ENTER.
_______________________________
Hon. Consuelo Mallafre Melendez
J.S.C.
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Preview
FILED: KINGS COUNTY CLERK 04/15/2024 02/16/2024 02:50 02:31 PM INDEX NO. 501066/2022 NYSCEF DOC. NO. 83 75 RECEIVED NYSCEF: 04/15/2024 02/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------X ANGEL MONTANEZ, Plaintiff, Index No.: 501066/2022 -against- ORDER WITH NOTICE OF ENTRY THE CITY OF NEW YORK; THE NEW YORK CITY HEALTH and HOSPITAL CORPORATION; KINGS COUNTY HOSPITAL CENTER; KAPADIA, PT; JEFFREY SCHWARTZ, MD; JASON BAJAJ, MD; JAMES DORAN, MD; NISHANT SUNEJA, MD; DONALD DOUKAS, MD; NICHOLAS STREKAS, MD; MICHAEL ROSE, MD; VIDUSHAN, NADARAJAH, MD; QAIS NAZIRI, MD; and John and Jane Does 1-6 being other unknown, unnamed Defendants, Defendants. -------------------------------------------------------------------------X PLEASE TAKE NOTICE, that the within is a true copy of the Decision and Order, dated February 16, 2024, executed by the Honorable Consuelo Mallafre Melendez, and duly entered in the within entitled action and filed in the office of the Clerk of the within named Court on February 16, 2024. Dated: New York, New York February 16, 2024 Yours, etc. FURMAN KORNFELD & BRENNAN LLP By: Tracy S. Katz Tracy S. Katz Attorneys for Defendant Shaili Kapadia, PT 88 Pine St, 32nd Floor New York, NY 10005 1 of 6 FILED: KINGS COUNTY CLERK 04/15/2024 02/16/2024 02:50 02:31 PM INDEX NO. 501066/2022 NYSCEF DOC. NO. 83 75 RECEIVED NYSCEF: 04/15/2024 02/16/2024 Tel.: (212) 867 - 4100 FKB File No.: 111.116 To: Via NYSCEF G. WESLEY SIMPSON, P.C., Attorneys for Plaintiff ANGEL MONTANEZ 1016 Ralph Avenue, 1st Floor Brooklyn, New York 11236 Tel: 718-345-8213 Fax: 718-345-3995 VIGORITO BARKER PATTERSON NICOHLS & PORTER LLP Attorneys for Defendants NEW YORK HEALTH AND HOSPITAL CENTER, JEFFREY SCHWARTZ, M.D., JASON BAJAJ, M.D., NISHANT SUNEJA, M.D., DONALD DOUKAS, M.D., NICHOLAS STEKAS, M.D., MICHAEL ROSE, M.D., VIDUSHAN NADARAJAH, M.D., QAIS NAZIRI, M.D. 420 Lexington Avenue, Suite 219 New York, NY 10170 Tel: 914-495-4808 2 of 6 FILED: KINGS COUNTY CLERK 04/15/2024 09:55 PM 02/16/2024 02:50 02:31 AM INDEX NO. 501066/2022 74 NYSCEF DOC. NO. 83 75 RECEIVED NYSCEF: 04/15/2024 02/16/2024 At an IAS Term, Part 15 of the Supreme Court of the State of NY, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 2nd day of February 2024. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------X ANGEL MONTANEZ, DECISION & ORDER Plaintiff, Index No. 501066/2022 Mo. Seq. 2 & 3 -against- THE CITY OF NEW YORK; THE NEW YORK CITY HEALTH AND HOSPITAL CORPORATION; KINGS COUNTY HOSPITAL; KAPADIA, PT; JEFFREY SCHWARTZ, MD; JASON BAJAJ, MD; JAMES DORAN, MD; NISHANT SUNEJA, MD; DONALD DOUKAS, MD; NICHOLAS STEKAS, MD; MICHAEL ROSE, MD; VIDUSHAN NADARAJAH, MD; QAIS NAZIRI, MD; and John Doe and Jane Doe 1 through 6 being other unknown and unnamed defendants, Defendants. --------------------------------------------------------------------------X HON. CONSUELO MALLAFRE MELENDEZ, J.S.C. Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 52 – 57, 62 – 72 Defendant Shaili Kapadia, PT s/h/a Kapadia, PT (“Kapadia”) moves for an Order, pursuant to CPLR 5015 (a) (4), to vacate the default judgment rendered against said defendant on May 30, 2023, and for an Order, pursuant to CPLR 3211 (a) (8), dismissing Plaintiff’s action as against Kapadia for failure to obtain personal jurisdiction; and Plaintiff cross moves for an Order, pursuant to CPLR 306-b, extending Plaintiff’s time to serve the summons and complaint, and permitting Plaintiff to serve Kapadia through his counsel. Plaintiff commenced this action on January 12, 2022, for alleged medical malpractice against multiple defendants. In an affidavit of service, process server Terence Kelly (“Kelly”) averred that he affixed a copy of the summons and complaint to the door of Kapadia’s “usual place of abode” at 109 West Marie Street, Hicksville, New York, on May 12, 2022, at 7:25 p.m. Kelly served the summons and complaint by mail to the same address 1 1 of 6 3 4 FILED: KINGS COUNTY CLERK 04/15/2024 09:55 PM 02/16/2024 02:50 02:31 AM INDEX NO. 501066/2022 74 NYSCEF DOC. NO. 83 75 RECEIVED NYSCEF: 04/15/2024 02/16/2024 on the same date. The affidavit of service also sets forth that Kelly made one prior attempt to serve Kapadia on May 12, 2022, at 12:20 p.m. at the same address. Kapadia did not interpose an answer, and Plaintiff moved for a default judgment pursuant to CPLR 3215 (a). Default judgment was granted against Kapadia on May 30, 2023. In support of the instant motion to vacate the default judgment and dismiss the complaint, Kapadia submits a personal affidavit stating that he moved from 109 West St. Marie Street to the state of Maryland in February 2022, and he no longer resided at the address where service was attempted on May 12, 2022. Kapadia also argues that Plaintiff failed to show due diligence before resorting to CPLR 308 (4) “nail and mail” service. Under CPLR 308 (4), personal jurisdiction may be obtained over a natural person by affixing the summons to the door of the person’s dwelling place or usual place of abode, and mailing the summons to their last known residence, but this service is only authorized when “service under paragraphs one and two cannot be made with due diligence.” “The due diligence requirement of CPLR 308 (4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received” (County of Nassau v Letosky, 34 AD3d 414, 415 [2d Dept 2006], quoting Gurevitch v Goodman, 269 AD2d 355 [2d Dept 2000]). Due diligence “may be satisfied with a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times” (Estate of Waterman v Jones, 46 AD3d 63, 66 [2d Dept 2007]). Generally, the affidavit of service must set forth the details of these attempts, so that the court may determine whether due diligence has been exercised on a case- by-case basis (see Barnes v City of New York, 51 NY2d 906 [1980]). A plaintiff fails to show due diligence where, for example, two of the three attempts were made on weekdays during business hours (County v Nassau, at 415). Here, Kelly’s affidavit fails to establish that due diligence was exercised before Plaintiff resorted to “nail and mail” service under CPLR 308 (4). Based on the submissions, the process server made only one attempt to serve Kapadia at his alleged dwelling place on a Thursday at 12:20 p.m. Seven hours later, the summons and complaint were affixed to the door. While due diligence is evaluated based on quality and not quantity of attempts (see McSorley v Spear, 50 AD3d 652 [2d Dept 2008], citing Estate of Waterman), paying two visits to the home on a single day, once during typical business hours, is clearly insufficient in both quality and quantity. Accordingly, service of the summons and complaint on Kapadia was improper, and the default judgment dated May 30, 2023, is vacated for lack of personal jurisdiction. Where service was never properly effectuated, the defendant need not show a meritorious defense or excuse for the default (see CPLR 5015 [a] [4]). “In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void” (Washington Mut. Bank v Murphy, 127 AD3d 1167 [2d Dept 2015]). 2 2 of 6 4 4 FILED: KINGS COUNTY CLERK 04/15/2024 09:55 PM 02/16/2024 02:50 02:31 AM INDEX NO. 501066/2022 74 NYSCEF DOC. NO. 83 75 RECEIVED NYSCEF: 04/15/2024 02/16/2024 CPLR 306-b provides that the court may extend the time for service upon good cause shown or in the interest of justice. “‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards” (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31 [2d Dept 2009]). Good cause does not exist where plaintiff failed to make “at least a reasonably diligent effort at service,” but rather where the “failure to timely serve process is a result of circumstances beyond plaintiff’s control” (id.). However, if good cause is not established, courts may also consider other factors in the interest of justice, including “the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant” (id., at 32; see also Leader v Maroney, 97 NY2d 95, 106 n 3 [2001]). Here, despite Plaintiff’s insufficient “due diligence” efforts under CPLR 308 (4), Plaintiff did apparently make a good faith attempt to affix the summons and complaint to the door and mail the summons and complaint to the address they believed was Kapadia’s place of abode, unaware he no longer resided there, within the 120- day period after the action was commenced. Even if Plaintiff’s failure to properly serve Kapadia did not constitute good cause, the interest of justice standard is intentionally broader “to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant” (Leader, at 105). Because the statute of limitations has since expired, Plaintiff would be left without a remedy against Kapadia if the action is dismissed due to the deficiencies in his affidavit of service. Plaintiff has established a meritorious cause of action through his verified complaint. Although the nearly two-year delay since the time for service expired is a lengthy one, Plaintiff brought this cross-motion to request an extension of time in response to Kapadia’s motion. In light of the previously granted default judgment motion, this was the first time Plaintiff’s counsel was reasonably aware that service was defective, and his cross-motion was prompt and timely. There is no showing of any prejudice to the defendant that would result from the extension of time. Finally, the strong public policy in favor of resolving cases on the merits weighs in favor of vacating the default judgment against Kapadia but also allowing Plaintiff an extension of time rather than dismissing the action. For these reasons, Plaintiff’s cross- motion to extend his time to serve the summons and complaint upon Kapadia is granted. Accordingly, it is hereby: ORDERED that the branch of Kapadia’s motion (Seq. No. 2) seeking an Order, pursuant to CPLR 5015 (a) (4), to vacate the default judgment rendered against said defendant on May 30, 2023, is GRANTED; and it is further ORDERED that the branch of Kapadia’s motion seeking an Order, pursuant to CPLR 3211 (a) (8), dismissing Plaintiff’s action as against Kapadia, is DENIED; and it is further ORDERED that Plaintiff’s cross-motion (Seq. No. 3) seeking an Order, pursuant to CPLR 306-b, 3 3 of 6 5 4 FILED: KINGS COUNTY CLERK 04/15/2024 09:55 PM 02/16/2024 02:50 02:31 AM INDEX NO. 501066/2022 74 NYSCEF DOC. NO. 83 75 RECEIVED NYSCEF: 04/15/2024 02/16/2024 extending Plaintiff’s time to serve the summons and complaint, is GRANTED; and it is further ORDERED that within 30 days of the entry of this Order to NYSCEF, Plaintiff shall serve the summons and complaint on Kapadia in accordance with CPLR 308, and shall also serve Kapadia’s counsel by mail, and file proof of such service. This constitutes the decision and order of this Court. ENTER. _______________________________ Hon. Consuelo Mallafre Melendez J.S.C. 4 4 of 6 6 4