Preview
FILED: QUEENS COUNTY CLERK 08/14/2019 03:44 PM INDEX NO. 717964/2018
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/14/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
TERESA ROBINSON and DEREK ROBINSON,
Plaintiff, Index #: 717964/2018
-against- ANSWERING
AND REPLY
NORTHWELL HEALTH, INC., LONG ISLAND AFFIRMATION
JEWISH MEDICAL CENTER, DEEPAK NANDA,
M.D., P.C., DEEPAK NANDA, M.D. and EMMANUEL
M. PAFOS, M.D.,
Defendants.
ANTHONY J. SANFRATELLO, an attorney admitted to practice law in the Courts of
New York State, affirms under penalty of perjury as follows:
1. I am an attorney licensed to practice in the State of New York, and am an associate in the
law firm of BROWN, GAUJEAN, KRAUS, & SASTOW, PLLC, attorneys for DEEPAK
NANDA, M.D., P.C. (hereinafter, "NANDA, M.D., P.C.") and DEEPAK NANDA, M.D.
As such, I am fully familiar with the facts and proceedings relevant to the instant matter.
2. This reply affirmation is submitted in further support of NANDA, M.D., P.C.'s motion to
dismiss pursuant to CPLR § 311(1)(a), CPLR § 3211(a)(8) and CPLR § 3211(e) and in
opposition of plaintiff's cross-motion to extend the time to serve and effect process upon
NANDA, M.D., P.C. and thereafter deeming NANDA, M.D., P.C. properly served nunc
pro tune, pursuant to CPLR § 306-b and CPLR § 2004. As set forth below and as
previously demonstrated, NANDA, M.D., P.C. is entitled to dismissal because the entity
was never served with the Summons and Complaint and the plaintiff has failed to
demonstrate a valid basis for an extension of time to serve and effect process.
3. Thus, the plaintiff's cross-motion should be denied and the motion by NANDA, M.D.,
P.C. should be granted.
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STATEMENT OF RELEVANT FACT_
4. This action was commenced by the plaintiff by the filing of a Summons and Complaint
with the Queens County Clerk on November 22, 2018.
5. Defendant NANDA, M.D., P.C. timely filed their Verified Answer with the Queens
County Clerk on March 20, 2019, in which it raised the affirmative defense of the court
lacking personal jurisdiction due to plaintiff's failure to serve NANDA, M.D., P.C. No
cross claims were asserted against NANDA, M.D., P.C. in any Answers.
plaintiffs'
6. According to Affidavit of Service, which was filed with the court on February
20, 2019, co-defendant DEEPAX NANDA, M.D. was served with the Summons and
plaintiffs'
Complaint on February 12, 2019. According to Affidavit of Service, which
was filed with the court on February 20, 2019, co-defendant EMMANUEL M. PAFOS,
M.D. was served with the Summons and Complaint on February 12, 2019. According to
these affidavits, both co-defendants DEEPAK NANDA, M.D. and EMMANUEL M.
PAFOS, M.D. were served at the offices of NANDA, M.D., P.C. However, defendant .
NANDA, M.D., P.C. was never served at that time, or at any other time. The E-File
Docket Summary via NYSEF for this case shows that there is no Affidavit of Service
related to service of any Summons and Complaint on defendant NANDA, M.D., P.C.
7. Based on this, Defendant NANDA, M.D., P.C. timely filed a motion to dismiss pursuant
to CPLR § 311(1)(a), CPLR § 3211(a)(8) and CPLR § 3211(e) on May 15, 2019.
8. On The Paglinawan Law P.C. substituted Munawar & Andrews-
July 2, 2019, Firm,
Santillo, LLP as plaintiff's counsel.
9. On July 18, 2019, plaintiff filed their opposition to NANDA, M.D., P.C.'s motion to
dismiss along with a cross-motion seeking an extension of time to serve NANDA, M.D.,
P.C. pursuant to CPLR § 306-b and CPLR § 2004.
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LEGAL ARGUMENT
POINT I
PLAINTIFF S MOTION PURSUANT TO CPLR 306-b AND CPLR 2004 SHOULD
BE DENIED
10. CPLR § 306-b states that "if service is not made upon a defendant within the time
provided in this section, the court, upon motion, shall dismiss the action without
prejudice as to that defendant, or upon good cause shown or in the interest of justice,
cause" justice"
extend time for service". The "good branch and the "interest of branch are
two separate grounds for extension and are defined by separate criteria. See Leader v.
Maroney, Ponzini & Spencer, 97 N.Y.2d 95 (2001).
11. The showing of good cause requires a showing that the plaintiff made reasonably diligent
efforts to make timely service. Id. Good cause is most likely to be found where "the
plaintiff's failure to timely serve process is a result of circumstances beyond the
plaintiff's control". Bumpus v. New York City Transit Auth., 66 A.D.3d 26, 22 (2009).
Additionally, the absence of any attempt to make service within the 120-day period will
disqualify the plaintiff from an extension based on good cause. See Valentin v. Zaltsman,
39 A.D.3d 852 (2007). Here, the plaintiff made no attempt to serve NANDA, M.D., P.C.
within the 120-day period provided by CPLR § 306-b. Additionally, the plaintiff has
provided no evidence to show that this failure to timely serve NANDA, M.D., P.C. was
due to circumstances out of their control. Based on this, plaintiff is not entitled to an
extension based on the good cause standard of CPLR § 306-b.
12. Under the interest of justice standard, reaseñable diligence in attempting to serve is not a
threshold or prerequisite. However, diligence in the attempt to serve process may be a
relevant factor, along other factors such as "expiration of the Statute of Limitations, the
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meritorious nature of the cause of action, the length of delay in service, the promptness of
plaintiff's request for an extension of time, and the prejudice to the defendant". Leader v.
Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105-06 (2001). Examples of unsuccessful
applications under this standard have occurred due to plaintiff's failure exercise any
diligence in prosecuting the action, lack of a meritorious claim and several months
elapsing before the plaintiff sought their extension. See Johnson v. Concourse Village,
Inc., 69 A.D.3d 410 (2010); Hine v. Bambara, 66 A.D.3d 1192 (2009). Here, the plaintiff
exercised no diligence in serving Defendant NANDA, M.D., P.C. The plaintiff made no
attempt to serve NANDA, M.D., P.C. within the 120-day period provided by CPLR §
306-b and has provided no evidence to show any valid reason for this failure. At this
point in the case at hand, the Statute of Limitations has expired. The Summons and
Complaint were filed on November 22, 2018, which, based on the plaintiff's last contact
with Dr. Pafos, was only a few days prior to the expiration of the Statute of Limitations.
If the plaintiff's motion was successful, the court would essentially be extending the
Statute of Limitations in this case, which is inherently prejudicial to Defendant NANDA,
M.D., P.C. Additionally, several months have elapsed since the expiration of the 120-day
period provided by CPLR § 306-b. The Summons and Complaint were filed on
November 22, 2018. The 120-day period expired on or around February 22, 2019. The
plaintiff sought an extension through their cross-motion dated July 18, 2019.
Additionally, plaintiff's first attempt at serving NANDA, M.D., P.C. was July 12, 2019.
Thus, around 5 months have elapsed between the expiration of the 120-day period and
the time plaintiff sought their extension and served Defendant NANDA, M.D., P.C.
Based on all of these factors taken together, the plaintiff is not entitled to an extension
based on the interest of justice standard of CPLR § 306-b.
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POINT II
PLAINTIFF WOULD NOT BE PREMITTED TO AMEND THEIR COMPAINT
THE "RELATION-BACK"
UNDER DOCTRINE OF CPLR § 3025(b) AND CPLR
§ 203(c)
13. The relation back doctrine, codified in CPLR § 3025(b) and CPLR § 203(c), allows a
claim asserted against a defendant in an amended filing to relate back to claims
previously asserted against a co-defendant for statute of limitations purposes where the
two defendants are united in interest. "The three conditions that must be satisfied in order
for claims against one defendant to relate back to claims asserted against another are that:
(1) both claims arose out of same conduct, transaction or occurrence, (2) the new party is
interest'
'united in with the original defendant, and by reason of that relationship can be
charged with such notice of the institution of the action that he will not be prejudiced in
maintaining his defense on the merits and (3) the new party knew or should have known
that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the
well."
action would have been brought against him as Buran v. Coupal, 87 N.Y.2d 173,
176 (1995).
14. In the case at hand, the plaintiff has failed to satisfy the third prong of the relation back
doctrine. The third prong of this test states that "the new party knew or should have
known that, but for an excusable mistake by plaintiff as to the identity of the proper
parties, the action would have been brought against him as well". Here, there was no
mistake of identity regarding Defendant NANDA, M.D., P.C. The plaintiff knew of the
existence of NANDA, M.D., P.C., as evidenced by listing the entity in the caption of the
lawsuit. "When a plaintiff intentionally decides not to assert a claim against a party
known to be potentially liable, there has been no mistake and the plaintiff should not be
passed."
given a second opportunity to assert that claim after the limitations period has
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Buran v. Coupal, 87 N.Y.2d 173, 181 (1995); Holster v. Ross, 45 A.D.3d 640, 642
(2007). Additionally, the plaintiff was made aware of the fact that NANDA, M.D., P.C.
never received an affidavit of service. Defendant NANDA, M.D., P.C. timely filed their
Verified Answer with the Queens County Clerk on March 20, 2019, in which itraised the
affirmative defense of the court lacking personal jurisdiction due to plaintiff's failure to
serve NANDA, M.D., P.C. The plaintiff had sufficient time between the filing of
NANDA, M.D., P.C.'s Verified Answer and the expiration of the 120-day period
provided by CPLR § 306-b to fix this defect, if they truly wanted to. Thus, when the
plaintiff chose not to serve NANDA, M.D., P.C. during the 120-day period, itcould be
logically concluded by NANDA, M.D., P.C. that the plaintiff no longer wished to
proceed against them in this action. Because the plaintiff has failed to satisfy prong three
of the relation back doctrine, the plaintiff would not be permitted to bring back Defendant
NANDA, M.D., P.C. into this case in the future.
CONCLUSION
15. For the foregoing reasons, the plaintiff's cross-motion should be denied and the motion to
dismiss on behalf of NANDA, M.D., P.C. should be granted in allrespects.
WHEREFORE, it is therefore requested that the Court dismiss the action as against
NANDA, M.D., P.C., together with such other and further relief as the Court deems just and
proper.
Dated: White Plains, New York
August 14, 2019
Anthdffy J. Sanfratello
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Preview
FILED: QUEENS COUNTY CLERK 08/14/2019 03:44 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS TERESA ROBINSON and DEREK ROBINSON, Plaintiff, Index #: 717964/2018 -against- ANSWERING AND REPLY NORTHWELL HEALTH, INC., LONG ISLAND AFFIRMATION JEWISH MEDICAL CENTER, DEEPAK NANDA, M.D., P.C., DEEPAK NANDA, M.D. and EMMANUEL M. PAFOS, M.D., Defendants. ANTHONY J. SANFRATELLO, an attorney admitted to practice law in the Courts of New York State, affirms under penalty of perjury as follows: 1. I am an attorney licensed to practice in the State of New York, and am an associate in the law firm of BROWN, GAUJEAN, KRAUS, & SASTOW, PLLC, attorneys for DEEPAK NANDA, M.D., P.C. (hereinafter, "NANDA, M.D., P.C.") and DEEPAK NANDA, M.D. As such, I am fully familiar with the facts and proceedings relevant to the instant matter. 2. This reply affirmation is submitted in further support of NANDA, M.D., P.C.'s motion to dismiss pursuant to CPLR § 311(1)(a), CPLR § 3211(a)(8) and CPLR § 3211(e) and in opposition of plaintiff's cross-motion to extend the time to serve and effect process upon NANDA, M.D., P.C. and thereafter deeming NANDA, M.D., P.C. properly served nunc pro tune, pursuant to CPLR § 306-b and CPLR § 2004. As set forth below and as previously demonstrated, NANDA, M.D., P.C. is entitled to dismissal because the entity was never served with the Summons and Complaint and the plaintiff has failed to demonstrate a valid basis for an extension of time to serve and effect process. 3. Thus, the plaintiff's cross-motion should be denied and the motion by NANDA, M.D., P.C. should be granted. 1 of 6 FILED: QUEENS COUNTY CLERK 08/14/2019 03:44 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/14/2019 STATEMENT OF RELEVANT FACT_ 4. This action was commenced by the plaintiff by the filing of a Summons and Complaint with the Queens County Clerk on November 22, 2018. 5. Defendant NANDA, M.D., P.C. timely filed their Verified Answer with the Queens County Clerk on March 20, 2019, in which it raised the affirmative defense of the court lacking personal jurisdiction due to plaintiff's failure to serve NANDA, M.D., P.C. No cross claims were asserted against NANDA, M.D., P.C. in any Answers. plaintiffs' 6. According to Affidavit of Service, which was filed with the court on February 20, 2019, co-defendant DEEPAX NANDA, M.D. was served with the Summons and plaintiffs' Complaint on February 12, 2019. According to Affidavit of Service, which was filed with the court on February 20, 2019, co-defendant EMMANUEL M. PAFOS, M.D. was served with the Summons and Complaint on February 12, 2019. According to these affidavits, both co-defendants DEEPAK NANDA, M.D. and EMMANUEL M. PAFOS, M.D. were served at the offices of NANDA, M.D., P.C. However, defendant . NANDA, M.D., P.C. was never served at that time, or at any other time. The E-File Docket Summary via NYSEF for this case shows that there is no Affidavit of Service related to service of any Summons and Complaint on defendant NANDA, M.D., P.C. 7. Based on this, Defendant NANDA, M.D., P.C. timely filed a motion to dismiss pursuant to CPLR § 311(1)(a), CPLR § 3211(a)(8) and CPLR § 3211(e) on May 15, 2019. 8. On The Paglinawan Law P.C. substituted Munawar & Andrews- July 2, 2019, Firm, Santillo, LLP as plaintiff's counsel. 9. On July 18, 2019, plaintiff filed their opposition to NANDA, M.D., P.C.'s motion to dismiss along with a cross-motion seeking an extension of time to serve NANDA, M.D., P.C. pursuant to CPLR § 306-b and CPLR § 2004. 2 2 of 6 FILED: QUEENS COUNTY CLERK 08/14/2019 03:44 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/14/2019 LEGAL ARGUMENT POINT I PLAINTIFF S MOTION PURSUANT TO CPLR 306-b AND CPLR 2004 SHOULD BE DENIED 10. CPLR § 306-b states that "if service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, cause" justice" extend time for service". The "good branch and the "interest of branch are two separate grounds for extension and are defined by separate criteria. See Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95 (2001). 11. The showing of good cause requires a showing that the plaintiff made reasonably diligent efforts to make timely service. Id. Good cause is most likely to be found where "the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control". Bumpus v. New York City Transit Auth., 66 A.D.3d 26, 22 (2009). Additionally, the absence of any attempt to make service within the 120-day period will disqualify the plaintiff from an extension based on good cause. See Valentin v. Zaltsman, 39 A.D.3d 852 (2007). Here, the plaintiff made no attempt to serve NANDA, M.D., P.C. within the 120-day period provided by CPLR § 306-b. Additionally, the plaintiff has provided no evidence to show that this failure to timely serve NANDA, M.D., P.C. was due to circumstances out of their control. Based on this, plaintiff is not entitled to an extension based on the good cause standard of CPLR § 306-b. 12. Under the interest of justice standard, reaseñable diligence in attempting to serve is not a threshold or prerequisite. However, diligence in the attempt to serve process may be a relevant factor, along other factors such as "expiration of the Statute of Limitations, the 3 3 of 6 FILED: QUEENS COUNTY CLERK 08/14/2019 03:44 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/14/2019 meritorious nature of the cause of action, the length of delay in service, the promptness of plaintiff's request for an extension of time, and the prejudice to the defendant". Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105-06 (2001). Examples of unsuccessful applications under this standard have occurred due to plaintiff's failure exercise any diligence in prosecuting the action, lack of a meritorious claim and several months elapsing before the plaintiff sought their extension. See Johnson v. Concourse Village, Inc., 69 A.D.3d 410 (2010); Hine v. Bambara, 66 A.D.3d 1192 (2009). Here, the plaintiff exercised no diligence in serving Defendant NANDA, M.D., P.C. The plaintiff made no attempt to serve NANDA, M.D., P.C. within the 120-day period provided by CPLR § 306-b and has provided no evidence to show any valid reason for this failure. At this point in the case at hand, the Statute of Limitations has expired. The Summons and Complaint were filed on November 22, 2018, which, based on the plaintiff's last contact with Dr. Pafos, was only a few days prior to the expiration of the Statute of Limitations. If the plaintiff's motion was successful, the court would essentially be extending the Statute of Limitations in this case, which is inherently prejudicial to Defendant NANDA, M.D., P.C. Additionally, several months have elapsed since the expiration of the 120-day period provided by CPLR § 306-b. The Summons and Complaint were filed on November 22, 2018. The 120-day period expired on or around February 22, 2019. The plaintiff sought an extension through their cross-motion dated July 18, 2019. Additionally, plaintiff's first attempt at serving NANDA, M.D., P.C. was July 12, 2019. Thus, around 5 months have elapsed between the expiration of the 120-day period and the time plaintiff sought their extension and served Defendant NANDA, M.D., P.C. Based on all of these factors taken together, the plaintiff is not entitled to an extension based on the interest of justice standard of CPLR § 306-b. 4 4 of 6 FILED: QUEENS COUNTY CLERK 08/14/2019 03:44 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/14/2019 POINT II PLAINTIFF WOULD NOT BE PREMITTED TO AMEND THEIR COMPAINT THE "RELATION-BACK" UNDER DOCTRINE OF CPLR § 3025(b) AND CPLR § 203(c) 13. The relation back doctrine, codified in CPLR § 3025(b) and CPLR § 203(c), allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a co-defendant for statute of limitations purposes where the two defendants are united in interest. "The three conditions that must be satisfied in order for claims against one defendant to relate back to claims asserted against another are that: (1) both claims arose out of same conduct, transaction or occurrence, (2) the new party is interest' 'united in with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the well." action would have been brought against him as Buran v. Coupal, 87 N.Y.2d 173, 176 (1995). 14. In the case at hand, the plaintiff has failed to satisfy the third prong of the relation back doctrine. The third prong of this test states that "the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well". Here, there was no mistake of identity regarding Defendant NANDA, M.D., P.C. The plaintiff knew of the existence of NANDA, M.D., P.C., as evidenced by listing the entity in the caption of the lawsuit. "When a plaintiff intentionally decides not to assert a claim against a party known to be potentially liable, there has been no mistake and the plaintiff should not be passed." given a second opportunity to assert that claim after the limitations period has 5 5 of 6 FILED: QUEENS COUNTY CLERK 08/14/2019 03:44 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/14/2019 Buran v. Coupal, 87 N.Y.2d 173, 181 (1995); Holster v. Ross, 45 A.D.3d 640, 642 (2007). Additionally, the plaintiff was made aware of the fact that NANDA, M.D., P.C. never received an affidavit of service. Defendant NANDA, M.D., P.C. timely filed their Verified Answer with the Queens County Clerk on March 20, 2019, in which itraised the affirmative defense of the court lacking personal jurisdiction due to plaintiff's failure to serve NANDA, M.D., P.C. The plaintiff had sufficient time between the filing of NANDA, M.D., P.C.'s Verified Answer and the expiration of the 120-day period provided by CPLR § 306-b to fix this defect, if they truly wanted to. Thus, when the plaintiff chose not to serve NANDA, M.D., P.C. during the 120-day period, itcould be logically concluded by NANDA, M.D., P.C. that the plaintiff no longer wished to proceed against them in this action. Because the plaintiff has failed to satisfy prong three of the relation back doctrine, the plaintiff would not be permitted to bring back Defendant NANDA, M.D., P.C. into this case in the future. CONCLUSION 15. For the foregoing reasons, the plaintiff's cross-motion should be denied and the motion to dismiss on behalf of NANDA, M.D., P.C. should be granted in allrespects. WHEREFORE, it is therefore requested that the Court dismiss the action as against NANDA, M.D., P.C., together with such other and further relief as the Court deems just and proper. Dated: White Plains, New York August 14, 2019 Anthdffy J. Sanfratello 6 6 of 6