Preview
INDEX NO. 24553/2013E
(FILED: BRONX COUNTY CLERK 0471172014)
NYSCEF DOC. NO. 67 RECEIVED NYSCEF 04/11/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
mene ene ene eee eee tne en nee enn nenennenenene,
SHERRY PICCHIONI as Administratrix of the Estate of
RODERICK PICCHIONI, deceased, and SHERRY
PICCHIONI, Individually,
Index No.: 24553/2013E
Plaintiff,
- against - AFFIRMATION IN SUPPORT
ANTONIO FOJA S, RUMANA SABUR, RICHARD
LUCARIELLO, MAHIRE OZCAN, NOAH
KORNBLUM, VINDHYA KATPALLY, TYLIS
CHANG, RONALD LIS, NEJAT KTYICI, NANDITA
SINHA, PRAKASHCHANDRA RAO, JUDAH
FIERSTEIN, MICHAEL ADER, RASHAM MITTAL,
STEFAN MADAJEWICZ, SHARON LEUNG, TAREK
ELRAFEL, MANOJ KARWA, MONTEFIORE
MEDICAL CENTER, MONTEFIORE WAKEFIELD
CAMPUS and JACK D. WEILER HOSPITAL,
Defendants.
wate nen nen nen nen eee eee ene e nnn nen nememnmennennnnnn,
NICOLE T. ATTIA, an attorney duly licensed to practice before the courts of the State
of New York, hereby affirms the following to be true under the penalty of perjury, or if stated
upon information and belief, that I believe them to be true:
1 Tam an Associate of the law firm HEIDELL, PITTONI, MURPHY & BACH,
LLP, attorneys for defendants JUDAH FIERSTEIN and STEFAN MADAJEWICZ, and by
virtue of my review of the file maintained by this office, I am fully familiar with the facts,
pleadings, and prior proceedings pertaining to this case.
1189981.1
2 This Affirmation is respectfully submitted in support of a motion for an Order:
A Pursuant to CPLR §3211(a)(8), dismissing Plaintiff's Complaint as
to the moving Defendants for lack of personal jurisdiction based on
improper service; and
3 The following exhibits are annexed in support of this motion:
Exhibit A Copy of Summons & Complaint;
Exhibit B Copy of STEFAN MADJEWICZ’s Verified Answer;
Exhibit C Copy of JUDAH FIERSTEIN’s Verified Answer;
Exhibit D Copy of Affidavit of Service for JUDAH FIERSTEIN;
PROCEDURAL HISTORY
4 This medical malpractice and wrongful death action was commenced on
December 3, 2013 with the e-filing of a Summons & Verified Complaint in the Supreme Court,
Bronx County. See, Exhibit “A.”
5 According to the Complaint, this action arises out of the care and treatment
rendered to plaintiff's decedent, RODERICK PICCHIONI, at MONTEFIORE MEDICAL
CENTER between October 29, 2011 through December 6, 2011. Plaintiffs allege that
defendants failed to properly diagnose and treat splenic infarct and bowel ischemia, resulting in
ischemic intestine, sepsis, splenic infarct, gangrenous bowel and ultimately MR. PICCHIONI’S
death on December 6, 2011.
6 Issue was joined by STEFAN MADJEWICZ by service and e-filing ofa Verified
Answer on or about February 11, 2014 in which he asserted the affirmative defense of lack of
personal jurisdiction. See, Exhibit “B.” Issue was joined by JUDAH FIERSTEIN by service
and e-filing ofa Verified Answer on or about February 25, 2014 in which he asserted the
4
1189981.1
affirmative defense of lack of personal jurisdiction. See, Exhibit “C.” Therefore, the instant
motion is timely made within 60 days of joinder of issue on behalf of both moving defendants.
FACTUAL HISTORY
7 A copy of the Summons and Complaint was left with DR. MADJEWICZ’s wife,
at their home on January 23, 2014. A copy of the summons and complaint was also dropped off
in person at Montefiore Medical Center on January 23, 2014. To date, no affidavit of service has
been filed showing proper service on DR. MADJEWICZ.
8 A copy of the Summons and Complaint was left for DR. FIERSTEIN at Mt. Sinai
Hospital. To date, no affidavit of service has been filed showing proper service on DR.
FIERSTEIN. An Affidavit of Service dated January 20, 2014 was filed on February 19, 2014
indicating that service on DR. FIERSTEIN had been attempted on January 15, 2014 at Jersey
City Medical Center, but service was not completed because DR. FIERSTEIN was no longer
associated with that facility, and was now at Mt. Sinai. See, Exhibit “D.”
ARGUMENT
9 CPLR §308 states the requirements for service upon a natural person, and
includes any of the following methods:
(1) by delivering the summons within the state to the person to be served;
or (2) 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 is from an attorney or 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 services shall be filed
with the clerk of the court designated in the summons within twenty
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1189981.1
days of either such delivery or mailing, whichever is effected
later;...proof of service shall identify such person of suitable age and
discretion and state the date, time and place of service...
Under CPLR § 306-b, service of the summons and complaint, must be made within 120 days
after the commencement of the action. If service is not properly effectuated upon a defendant
within the time provided, upon motion the court may dismiss the action without prejudice as to
that defendant.
10. CPLR §308(2), is strictly construed, and plaintiff has the burden of proving, by a
preponderance of the credible evidence, that service was properly effected. Kearney v.
Neurosurgeons of New York, 31 AD3d 390 (2nd Dept.. 2006). Notice received by means other
than those authorized by statute does not bring a defendant within the jurisdiction of the court.
See, Feinstein v. Bergner, 48 NY2d 234 (1979) (where plaintiff's action was dismissed pursuant
to N.Y. C.P.L.R. 3211(8) for lack of personal jurisdiction over defendant because plaintiff failed
to prove by a preponderance of the evidence that plaintiff strictly complied with the delivery and
mailing requirements for service of process pursuant to N.Y. C.P.L.R. 308(2)); See, also Foster
v. Cranin 180 App. Div. 2d 712 (24 Dept.. 1992) (defendant was entitled to summary judgment
dismissing dental malpractice complaint on grounds of improper service of process where, after
service was made on person of suitable age and discretion at defendant's office, plaintiff mailed
process to office at incorrect and incomplete address; CLS CPLR §308(2) is to be strictly
construed.); West v. Doctor’s Hospital, 198 AD2d 92 (1st Dept. 1993) (the Appellate Division
acknowledged there is a distinction between practicing medicine in a hospital and an “actual
place of business” for purposes of obtaining personal jurisdiction under CPLR §308(2) and held
that service was improperly made upon a hospital administrator at the administration office on
the fourteenth floor when the invoices of defendant-respondent, an attending physician at
6
189981.1
defendant hospital, specified an office at the hospital in room 847.); Avakian v. De Los Santos
183 App. Div. 2d 687 (2 Dept. 1992)( plaintiff did not make sufficient showing that defendant
was properly served in accordance with CPLR § 308(2), even though process server called as
witness at hearing described delivery of summons with notice to defendant's wife and mailing of
duplicate copy to defendant's address later that day, where (1) server's affidavit reflected wrong
city and no zip code, (2) zip code contained in summons was not correct for defendant's address,
and (3) server testified that he placed his address on envelope as return address, and that
envelope was not returned to him, yet his affidavit stated that he had used plaintiff's attorney's
address as return address.
11. Notice received by any means other than those authorized by statute, does not
bring a defendant within the jurisdiction of the court. Maachia v. Russo, 67 N.Y.2d 592 (1986);
Estate of Waterman v. Jones, 46 A.D.3d 63, 65 (2™! Dep’t 2007); Schantz v. Wolfsohn, 2014
N.Y. Slip Op 30694(U). The Second Department has also held that actual receipt of pleadings
served under "nail and mail" provisions of CLS CPLR § 308 does not cure jurisdictional defect
caused by improper use of that method of service. De Shong v. Marks 144 App. Div. 2d 623
(2nd Dept. 1988), app dismd without op 74 NY2d 946 (1989), reconsideration den 75 NY2d 866
(1990). In a challenge to service of process, the fact that a defendant has received prompt notice
of the action is of no moment (See, e.g., De Zego v Donald F. Bruhn, M. D., P. C., 67 NY2d
875). Notice received by means other than those authorized by statute does not bring a defendant
within the jurisdiction of the court (see, Feinstein v Bergner, 48 NY2d 234, 241; McDonald v
Ames Supply Co., 22 NY2d 111, 115, supra).
11899811
PLAINTIFF DID NOT PROPERLY SERVE DR. FIERSTEIN,
THEREFORE THE ACTION AGAINST HIM SHOULD BE
DISMISSED FOR LACK OF JURISDICTION
12. DR. FIERSTEIN was not properly served under CPLR 308(2). While a copy of
the summons and complaint was left for him at Mt. Sinai Hospital, an affidavit of service was
not filed within 20 days after service showing that the required follow up mailing had been
effectuated. An affidavit of service dated January 20, 2014, was filed on February 19, 2014, see
Exhibit “D”; however that affidavit indicates that service on DR. FIERSTEIN was attempted but
not completed at that time. As service was not completed based on the affidavit of service filed
on February 19, 2014, and a supplement affidavit has not been filed, DR. FIERSTEIN was not
properly served. Further, actual receipt of the pleadings does not cure this defect. See DeShong
supra.
13. As service of process upon DR. FIERSTEIN was defective, this Court lacks
jurisdiction over the moving defendant. Because service of process was defective and because
the Court lacks jurisdiction over the person of the moving defendant, dismissal of the instant
ction is appropriate.
I. PLAINTIFF DID NOT PROPERLY SERVE DR. MADJEWICZ,
THEREFORE THE ACTION SHOULD BE DISMISSED FOR
LACK OF JURISDICTION
14. DR. MADJEWICZ was not properly served under CPLR 308(2). A copy of the
summons and complaint was left with DR. MADJEWICZ’S wife at their residence on January
23, 2014. A copy of the summons and complaint was hand delivered to Montefiore Medical
Center on or about the same day. Plaintiff has not filed an affidavit of service showing proof of
service on either party, or proof of the required follow up mailing. As the requirements for
8g
11899811
proper service upon a natural person under CPLR §308 were not complied with, DR.
MADJEWICZ has not been properly served. Further, actual receipt of the pleadings does not
cure this defect. See, DeShong supra.
15. As service of process upon DR. MADJEWICZ was defective, this Court lacks
jurisdiction over the moving defendant. Because service of process was defective and because
the Court lacks jurisdiction over the person of the moving defendant, dismissal of the instant
action is appropriate.
CONCLUSION
16. For all of the foregoing reasons, we respectfully submit that the Motion to
Dismiss on behalf
of JUDAH FIERSTEIN and STEFAN MADJEWICZ should be granted in its
entirety.
WHEREFORE, it is respectfully requested that the Motion to Dismiss be granted in its
entirety, together with such other and further relief as this Court deems just and proper.
Dated: New York, New York
April 11, 2014
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INDEX NO. 24553/2013E (FILED: BRONX COUNTY CLERK 0471172014) NYSCEF DOC. NO. 67 RECEIVED NYSCEF 04/11/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX mene ene ene eee eee tne en nee enn nenennenenene, SHERRY PICCHIONI as Administratrix of the Estate of RODERICK PICCHIONI, deceased, and SHERRY PICCHIONI, Individually, Index No.: 24553/2013E Plaintiff, - against - AFFIRMATION IN SUPPORT ANTONIO FOJA S, RUMANA SABUR, RICHARD LUCARIELLO, MAHIRE OZCAN, NOAH KORNBLUM, VINDHYA KATPALLY, TYLIS CHANG, RONALD LIS, NEJAT KTYICI, NANDITA SINHA, PRAKASHCHANDRA RAO, JUDAH FIERSTEIN, MICHAEL ADER, RASHAM MITTAL, STEFAN MADAJEWICZ, SHARON LEUNG, TAREK ELRAFEL, MANOJ KARWA, MONTEFIORE MEDICAL CENTER, MONTEFIORE WAKEFIELD CAMPUS and JACK D. WEILER HOSPITAL, Defendants. wate nen nen nen nen eee eee ene e nnn nen nememnmennennnnnn, NICOLE T. ATTIA, an attorney duly licensed to practice before the courts of the State of New York, hereby affirms the following to be true under the penalty of perjury, or if stated upon information and belief, that I believe them to be true: 1 Tam an Associate of the law firm HEIDELL, PITTONI, MURPHY & BACH, LLP, attorneys for defendants JUDAH FIERSTEIN and STEFAN MADAJEWICZ, and by virtue of my review of the file maintained by this office, I am fully familiar with the facts, pleadings, and prior proceedings pertaining to this case. 1189981.1 2 This Affirmation is respectfully submitted in support of a motion for an Order: A Pursuant to CPLR §3211(a)(8), dismissing Plaintiff's Complaint as to the moving Defendants for lack of personal jurisdiction based on improper service; and 3 The following exhibits are annexed in support of this motion: Exhibit A Copy of Summons & Complaint; Exhibit B Copy of STEFAN MADJEWICZ’s Verified Answer; Exhibit C Copy of JUDAH FIERSTEIN’s Verified Answer; Exhibit D Copy of Affidavit of Service for JUDAH FIERSTEIN; PROCEDURAL HISTORY 4 This medical malpractice and wrongful death action was commenced on December 3, 2013 with the e-filing of a Summons & Verified Complaint in the Supreme Court, Bronx County. See, Exhibit “A.” 5 According to the Complaint, this action arises out of the care and treatment rendered to plaintiff's decedent, RODERICK PICCHIONI, at MONTEFIORE MEDICAL CENTER between October 29, 2011 through December 6, 2011. Plaintiffs allege that defendants failed to properly diagnose and treat splenic infarct and bowel ischemia, resulting in ischemic intestine, sepsis, splenic infarct, gangrenous bowel and ultimately MR. PICCHIONI’S death on December 6, 2011. 6 Issue was joined by STEFAN MADJEWICZ by service and e-filing ofa Verified Answer on or about February 11, 2014 in which he asserted the affirmative defense of lack of personal jurisdiction. See, Exhibit “B.” Issue was joined by JUDAH FIERSTEIN by service and e-filing ofa Verified Answer on or about February 25, 2014 in which he asserted the 4 1189981.1 affirmative defense of lack of personal jurisdiction. See, Exhibit “C.” Therefore, the instant motion is timely made within 60 days of joinder of issue on behalf of both moving defendants. FACTUAL HISTORY 7 A copy of the Summons and Complaint was left with DR. MADJEWICZ’s wife, at their home on January 23, 2014. A copy of the summons and complaint was also dropped off in person at Montefiore Medical Center on January 23, 2014. To date, no affidavit of service has been filed showing proper service on DR. MADJEWICZ. 8 A copy of the Summons and Complaint was left for DR. FIERSTEIN at Mt. Sinai Hospital. To date, no affidavit of service has been filed showing proper service on DR. FIERSTEIN. An Affidavit of Service dated January 20, 2014 was filed on February 19, 2014 indicating that service on DR. FIERSTEIN had been attempted on January 15, 2014 at Jersey City Medical Center, but service was not completed because DR. FIERSTEIN was no longer associated with that facility, and was now at Mt. Sinai. See, Exhibit “D.” ARGUMENT 9 CPLR §308 states the requirements for service upon a natural person, and includes any of the following methods: (1) by delivering the summons within the state to the person to be served; or (2) 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 is from an attorney or 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 services shall be filed with the clerk of the court designated in the summons within twenty 5 1189981.1 days of either such delivery or mailing, whichever is effected later;...proof of service shall identify such person of suitable age and discretion and state the date, time and place of service... Under CPLR § 306-b, service of the summons and complaint, must be made within 120 days after the commencement of the action. If service is not properly effectuated upon a defendant within the time provided, upon motion the court may dismiss the action without prejudice as to that defendant. 10. CPLR §308(2), is strictly construed, and plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly effected. Kearney v. Neurosurgeons of New York, 31 AD3d 390 (2nd Dept.. 2006). Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court. See, Feinstein v. Bergner, 48 NY2d 234 (1979) (where plaintiff's action was dismissed pursuant to N.Y. C.P.L.R. 3211(8) for lack of personal jurisdiction over defendant because plaintiff failed to prove by a preponderance of the evidence that plaintiff strictly complied with the delivery and mailing requirements for service of process pursuant to N.Y. C.P.L.R. 308(2)); See, also Foster v. Cranin 180 App. Div. 2d 712 (24 Dept.. 1992) (defendant was entitled to summary judgment dismissing dental malpractice complaint on grounds of improper service of process where, after service was made on person of suitable age and discretion at defendant's office, plaintiff mailed process to office at incorrect and incomplete address; CLS CPLR §308(2) is to be strictly construed.); West v. Doctor’s Hospital, 198 AD2d 92 (1st Dept. 1993) (the Appellate Division acknowledged there is a distinction between practicing medicine in a hospital and an “actual place of business” for purposes of obtaining personal jurisdiction under CPLR §308(2) and held that service was improperly made upon a hospital administrator at the administration office on the fourteenth floor when the invoices of defendant-respondent, an attending physician at 6 189981.1 defendant hospital, specified an office at the hospital in room 847.); Avakian v. De Los Santos 183 App. Div. 2d 687 (2 Dept. 1992)( plaintiff did not make sufficient showing that defendant was properly served in accordance with CPLR § 308(2), even though process server called as witness at hearing described delivery of summons with notice to defendant's wife and mailing of duplicate copy to defendant's address later that day, where (1) server's affidavit reflected wrong city and no zip code, (2) zip code contained in summons was not correct for defendant's address, and (3) server testified that he placed his address on envelope as return address, and that envelope was not returned to him, yet his affidavit stated that he had used plaintiff's attorney's address as return address. 11. Notice received by any means other than those authorized by statute, does not bring a defendant within the jurisdiction of the court. Maachia v. Russo, 67 N.Y.2d 592 (1986); Estate of Waterman v. Jones, 46 A.D.3d 63, 65 (2™! Dep’t 2007); Schantz v. Wolfsohn, 2014 N.Y. Slip Op 30694(U). The Second Department has also held that actual receipt of pleadings served under "nail and mail" provisions of CLS CPLR § 308 does not cure jurisdictional defect caused by improper use of that method of service. De Shong v. Marks 144 App. Div. 2d 623 (2nd Dept. 1988), app dismd without op 74 NY2d 946 (1989), reconsideration den 75 NY2d 866 (1990). In a challenge to service of process, the fact that a defendant has received prompt notice of the action is of no moment (See, e.g., De Zego v Donald F. Bruhn, M. D., P. C., 67 NY2d 875). Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court (see, Feinstein v Bergner, 48 NY2d 234, 241; McDonald v Ames Supply Co., 22 NY2d 111, 115, supra). 11899811 PLAINTIFF DID NOT PROPERLY SERVE DR. FIERSTEIN, THEREFORE THE ACTION AGAINST HIM SHOULD BE DISMISSED FOR LACK OF JURISDICTION 12. DR. FIERSTEIN was not properly served under CPLR 308(2). While a copy of the summons and complaint was left for him at Mt. Sinai Hospital, an affidavit of service was not filed within 20 days after service showing that the required follow up mailing had been effectuated. An affidavit of service dated January 20, 2014, was filed on February 19, 2014, see Exhibit “D”; however that affidavit indicates that service on DR. FIERSTEIN was attempted but not completed at that time. As service was not completed based on the affidavit of service filed on February 19, 2014, and a supplement affidavit has not been filed, DR. FIERSTEIN was not properly served. Further, actual receipt of the pleadings does not cure this defect. See DeShong supra. 13. As service of process upon DR. FIERSTEIN was defective, this Court lacks jurisdiction over the moving defendant. Because service of process was defective and because the Court lacks jurisdiction over the person of the moving defendant, dismissal of the instant ction is appropriate. I. PLAINTIFF DID NOT PROPERLY SERVE DR. MADJEWICZ, THEREFORE THE ACTION SHOULD BE DISMISSED FOR LACK OF JURISDICTION 14. DR. MADJEWICZ was not properly served under CPLR 308(2). A copy of the summons and complaint was left with DR. MADJEWICZ’S wife at their residence on January 23, 2014. A copy of the summons and complaint was hand delivered to Montefiore Medical Center on or about the same day. Plaintiff has not filed an affidavit of service showing proof of service on either party, or proof of the required follow up mailing. As the requirements for 8g 11899811 proper service upon a natural person under CPLR §308 were not complied with, DR. MADJEWICZ has not been properly served. Further, actual receipt of the pleadings does not cure this defect. See, DeShong supra. 15. As service of process upon DR. MADJEWICZ was defective, this Court lacks jurisdiction over the moving defendant. Because service of process was defective and because the Court lacks jurisdiction over the person of the moving defendant, dismissal of the instant action is appropriate. CONCLUSION 16. For all of the foregoing reasons, we respectfully submit that the Motion to Dismiss on behalf of JUDAH FIERSTEIN and STEFAN MADJEWICZ should be granted in its entirety. WHEREFORE, it is respectfully requested that the Motion to Dismiss be granted in its entirety, together with such other and further relief as this Court deems just and proper. Dated: New York, New York April 11, 2014 ~ | U / : WL \ \ Noe TATA \ 11899811