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FILED: QUEENS COUNTY CLERK 05/15/2019 10:20 AM INDEX NO. 717964/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 05/15/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
TERESA ROBINSON and DEREK ROBINSON,
Plaintiff, Index #: 717964/2018
-against- ATTORNEY
AFFIRMATION
NORTHWELL HEALTH, INC., LONG ISLAND
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 attomey 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 familiar with the facts and proceedings relevant to the instant matter.
fully
2. This affirmation is submitted in support of the motion of NANDA, M.D., P.C. to dismiss
pursuant to CPLR § 311(1)(a), CPLR § 321 l(a)(8) and CPLR § 3211(e). As set forth
below, NANDA, M.D., P.C. is entitled to dismissal because the entity was never served
with the Summons and Complaint. As such, the court lacks personal jurisdiction over
NANDA, M.D., P.C.
3. Thus, the Complaint as against NANDA, M.D., P.C. should be dismissed.
PROCEDURAL HISTORY
4. This action was commenced by the filing of a Summons and Complaint with the Queens
County Clerk on November 22, 2018 (Exhibit A hereto). Plaintiff Teresa Robinson
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named five (5) defendants, including NANDA, M.D., P.C. The Complaint alleges four
(4) causes of action. The firstand second causes of action allege medical malpractice and
lack of informed consent respectively against all defendants in connection with treatment
rendered to plaintiff Teresa Robinson. The third cause of action alleges medical
CENTER"
malpractice against co-defendant "LONG ISLAND JEWISH MEDICAL in
connection with their selection and supervision of medical staff. The fourth cause of
action alleges loss of consortium on behalf of plaintiff Derek Robinson against all
defendants.
5. Defendant NANDA, M.D., P.C. timely filed their Verified Answer (Exhibit B hereto)
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. Additionally, co-defendant DEEPAK NANDA, M.D. filed his
Verified Answer (Exhibit C hereto) with the Queens County Clerk on March 20, 2019.
Co-defendant EMMANUEL M. PAFOS, M.D. filed his Answer (Exhibit C hereto) with
the Queens County Clerk on April 12, 2019. Co-defendants NORTHWELL HEALTH
INC. and LONG ISLAND JEWISH MEDICAL CENTER filed their Answers (Exhibit C
hereto) with the Queens County Clerk on March 3, 2019. No cross claims were asserted
against NANDA, M.D., P.C. in any Answers.
plaintiffs'
6. According to Affidavit of Service (Exhibit D hereto), which was filed with the
court on February 20, 2019, co-defendant DEEPAK NANDA, M.D. was served with the
plaintiffs'
Summons and Complaint on February 12, 2019. According to Affidavit of
Service (Exhibit D which was filed with the court on co-
hereto), February 20, 2019,
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
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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 (Exhibit
E hereto) shows that there is no Affidavit of Service related to service of any Summons
and Complaint on defendant NANDA, M.D., P.C.
LEGAL ARGUMENT
POINT I
NANDA, M.D., P.C. IS ENTITLED TO DISMISSAL
BECAUSE IT WAS NEVER SERVED
WITH THE SUMMONS AND COMPLAINT
7. Pursuant to CPLR § 311(1)(a), personal service upon a corporation or governmental
subdivision shall be made by delivering the summons as follows:
upon any domestic or foreign corporation, to an officer, director, managing or general
agent, or cashier or assistant cashier or to any other agent authorized by appointment or
by law to receive service. A business corporation may also be served pursuant to section
306 or 307 of the business corporation law...
8. Pursuant to CPLR § 308(2), personal service shall be made:
by delivering the summons within the state to a person of suitable age and
discretion at the actual place of business...of the person to be served and by
either mailing the summons to the person to be served at his or her lastknown
residence or by mailing the summons by first class mail to the person to be
served at his or her actual place of business... (Emphasis added.)
9. Pursuant to CPLR § 3211(e):
an objection that the summons and complaint, summons with notice, or notice of petition
and petition was not properly served is waived if, having raised such an objection in a
pleading, the objecting party does not move for judgment on that ground within sixty
days after serving the pleading, unless the court extends the time upon the ground of
undue hardship.
10. The service of the summons and complaint upon DEEPAK NANDA, M.D., individually,
was by substituted service with subsequent mailing. DEEPAK NANDA, M.D. was not
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served in hand. The second department has previously held that "{s]ervice of one copy of
a summons and complaint upon an officer of a corporation constitutes service upon the
corporation itself as well as upon the individual officer, where, as here, there was
simultaneous compliance with CPLR 311 (a) (1) and CPLR 308 (1)". Fernandez v
Morales Bros. Realty, Inc., 110 A.D.3d 676, 677 (N.Y. App. Div. 2013). However, this
case can be distinguished from the case at hand. In Fernandez, the plaintiff's process
server personally delivered one copy of the Summons and Complaint to the individual
defendant, Jorge A. Morales, who was an officer of Morales Bros. Realty, Inc. The
process server stated in his Affidavit of Service that he served both the company and the
plaintiffs'
individual defendant at this time. However, in this case, the Affidavit of
Service (Exhibit D hereto) was filed with the court on February 20, 2019 and only stated
that co-defendant DEEPAK NANDA, M.D. was served with the Summons and
j Complaint on February 12, 2019. This Affidavit of Service, nor any other Affidavit of
Service, listsNANDA, M.D., P.C. as ever having been served. The fact that there is no
Affidavit of Service with respect NANDA, M.D., P.C. shows that the plaintiff never had
the intention of serving NANDA, M.D., P.C. with a copy of the Summons and
Complaint.
plaintiffs'
11. According to Affidavit of Service (Exhibit D hereto), which was filed with the
court on February 20, 2019, co-defendant DEEPAK NANDA, M.D. was served with the
plaintiffs'
Summons and Complaint on February 12, 2019. According to Affidavit of
Service (Exhibit D which was filed with the court on co-
hereto), February 20, 2019,
defendant EMMANUEL M. PAFOS, M.D. was served with the Summons and Complaint
on February 12, 2019. According to these affidavits, both co-defendants were served at
the offices of NANDA, M.D., P.C. However, defendant NANDA, M.D., P.C. was never
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served at this time, or at any other time. The E-File Docket Summary via NYSEF for this
case (Exhibit E hereto) shows that there is no Affidavit of Service related to service of
any Summons and Complaint on defendant NANDA, M.D., P.C. The Answer for
NANDA, M.D., P.C. was filed on March 20, 2019.
12. This motion is timely, as it is being made within sixty days of the service of the Answer.
Additionally, it is clear that the defendant, NANDA, M.D., P.C. was never served with
the Summons and Complaint.
13. As a result of the failure to serve NANDA, M.D., P.C., the court lacks personal
jurisdiction over NANDA, M.D., P.C. and the case should be dismissed pursuant to
CPLR § 311(1)(a), CPLR § 3211(a)(8) and CPLR § 3211(e). See Ananda Capital
Partners, Inc. v. Stav Electrical Systems (1994) Ltd., 301 AD2d 430 (1 Dept. 2003).
CONCLUSION
14. For the foregoing reasons, this motion on behalf of NANDA, M.D., P.C. should be
granted in all respects. No prior application has been made to this or any Court for the
relief requested herein.
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
May 14, 2019
Anth nyd Sanflatello
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FILED: QUEENS COUNTY CLERK 05/15/2019 10:20 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 05/15/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS TERESA ROBINSON and DEREK ROBINSON, Plaintiff, Index #: 717964/2018 -against- ATTORNEY AFFIRMATION NORTHWELL HEALTH, INC., LONG ISLAND 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 attomey 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 familiar with the facts and proceedings relevant to the instant matter. fully 2. This affirmation is submitted in support of the motion of NANDA, M.D., P.C. to dismiss pursuant to CPLR § 311(1)(a), CPLR § 321 l(a)(8) and CPLR § 3211(e). As set forth below, NANDA, M.D., P.C. is entitled to dismissal because the entity was never served with the Summons and Complaint. As such, the court lacks personal jurisdiction over NANDA, M.D., P.C. 3. Thus, the Complaint as against NANDA, M.D., P.C. should be dismissed. PROCEDURAL HISTORY 4. This action was commenced by the filing of a Summons and Complaint with the Queens County Clerk on November 22, 2018 (Exhibit A hereto). Plaintiff Teresa Robinson 1 of 5 FILED: QUEENS COUNTY CLERK 05/15/2019 10:20 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 05/15/2019 named five (5) defendants, including NANDA, M.D., P.C. The Complaint alleges four (4) causes of action. The firstand second causes of action allege medical malpractice and lack of informed consent respectively against all defendants in connection with treatment rendered to plaintiff Teresa Robinson. The third cause of action alleges medical CENTER" malpractice against co-defendant "LONG ISLAND JEWISH MEDICAL in connection with their selection and supervision of medical staff. The fourth cause of action alleges loss of consortium on behalf of plaintiff Derek Robinson against all defendants. 5. Defendant NANDA, M.D., P.C. timely filed their Verified Answer (Exhibit B hereto) 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. Additionally, co-defendant DEEPAK NANDA, M.D. filed his Verified Answer (Exhibit C hereto) with the Queens County Clerk on March 20, 2019. Co-defendant EMMANUEL M. PAFOS, M.D. filed his Answer (Exhibit C hereto) with the Queens County Clerk on April 12, 2019. Co-defendants NORTHWELL HEALTH INC. and LONG ISLAND JEWISH MEDICAL CENTER filed their Answers (Exhibit C hereto) with the Queens County Clerk on March 3, 2019. No cross claims were asserted against NANDA, M.D., P.C. in any Answers. plaintiffs' 6. According to Affidavit of Service (Exhibit D hereto), which was filed with the court on February 20, 2019, co-defendant DEEPAK NANDA, M.D. was served with the plaintiffs' Summons and Complaint on February 12, 2019. According to Affidavit of Service (Exhibit D which was filed with the court on co- hereto), February 20, 2019, 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 2 2 of 5 FILED: QUEENS COUNTY CLERK 05/15/2019 10:20 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 05/15/2019 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 (Exhibit E hereto) shows that there is no Affidavit of Service related to service of any Summons and Complaint on defendant NANDA, M.D., P.C. LEGAL ARGUMENT POINT I NANDA, M.D., P.C. IS ENTITLED TO DISMISSAL BECAUSE IT WAS NEVER SERVED WITH THE SUMMONS AND COMPLAINT 7. Pursuant to CPLR § 311(1)(a), personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows: upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. A business corporation may also be served pursuant to section 306 or 307 of the business corporation law... 8. Pursuant to CPLR § 308(2), personal service shall be made: by delivering the summons within the state to a person of suitable age and discretion at the actual place of business...of the person to be served and by either mailing the summons to the person to be served at his or her lastknown residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business... (Emphasis added.) 9. Pursuant to CPLR § 3211(e): an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship. 10. The service of the summons and complaint upon DEEPAK NANDA, M.D., individually, was by substituted service with subsequent mailing. DEEPAK NANDA, M.D. was not 3 of 5 FILED: QUEENS COUNTY CLERK 05/15/2019 10:20 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 05/15/2019 served in hand. The second department has previously held that "{s]ervice of one copy of a summons and complaint upon an officer of a corporation constitutes service upon the corporation itself as well as upon the individual officer, where, as here, there was simultaneous compliance with CPLR 311 (a) (1) and CPLR 308 (1)". Fernandez v Morales Bros. Realty, Inc., 110 A.D.3d 676, 677 (N.Y. App. Div. 2013). However, this case can be distinguished from the case at hand. In Fernandez, the plaintiff's process server personally delivered one copy of the Summons and Complaint to the individual defendant, Jorge A. Morales, who was an officer of Morales Bros. Realty, Inc. The process server stated in his Affidavit of Service that he served both the company and the plaintiffs' individual defendant at this time. However, in this case, the Affidavit of Service (Exhibit D hereto) was filed with the court on February 20, 2019 and only stated that co-defendant DEEPAK NANDA, M.D. was served with the Summons and j Complaint on February 12, 2019. This Affidavit of Service, nor any other Affidavit of Service, listsNANDA, M.D., P.C. as ever having been served. The fact that there is no Affidavit of Service with respect NANDA, M.D., P.C. shows that the plaintiff never had the intention of serving NANDA, M.D., P.C. with a copy of the Summons and Complaint. plaintiffs' 11. According to Affidavit of Service (Exhibit D hereto), which was filed with the court on February 20, 2019, co-defendant DEEPAK NANDA, M.D. was served with the plaintiffs' Summons and Complaint on February 12, 2019. According to Affidavit of Service (Exhibit D which was filed with the court on co- hereto), February 20, 2019, defendant EMMANUEL M. PAFOS, M.D. was served with the Summons and Complaint on February 12, 2019. According to these affidavits, both co-defendants were served at the offices of NANDA, M.D., P.C. However, defendant NANDA, M.D., P.C. was never 4 4 of 5 FILED: QUEENS COUNTY CLERK 05/15/2019 10:20 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 05/15/2019 served at this time, or at any other time. The E-File Docket Summary via NYSEF for this case (Exhibit E hereto) shows that there is no Affidavit of Service related to service of any Summons and Complaint on defendant NANDA, M.D., P.C. The Answer for NANDA, M.D., P.C. was filed on March 20, 2019. 12. This motion is timely, as it is being made within sixty days of the service of the Answer. Additionally, it is clear that the defendant, NANDA, M.D., P.C. was never served with the Summons and Complaint. 13. As a result of the failure to serve NANDA, M.D., P.C., the court lacks personal jurisdiction over NANDA, M.D., P.C. and the case should be dismissed pursuant to CPLR § 311(1)(a), CPLR § 3211(a)(8) and CPLR § 3211(e). See Ananda Capital Partners, Inc. v. Stav Electrical Systems (1994) Ltd., 301 AD2d 430 (1 Dept. 2003). CONCLUSION 14. For the foregoing reasons, this motion on behalf of NANDA, M.D., P.C. should be granted in all respects. No prior application has been made to this or any Court for the relief requested herein. 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 May 14, 2019 Anth nyd Sanflatello 5 of 5