Gary W. Patterson, Jr. and Adonaid Medina have secured yet another dismissal of an entire action premised on alleged medical malpractice by a surgical group and its individual physician surgeons. The Supreme Court, New York County, dismissed the action in a decision that adopted all of the arguments articulated in favor of the motion to dismiss. The pre-answer motion sought dismissal for lack of personal jurisdiction, for failure to properly and timely effect process upon the defendants. It was also demonstrated that the claims were barred by the 2 ½ year statute of limitations.
In support of the motion, it was established that the papers purportedly served on the surgical group did not conform with the jurisdictional requirements because they were not served upon an authorized agent. An affidavit of the employee who accepted the summons was submitted, establishing that she had never acquired authority to accept service on behalf of the corporate defendant, and made no express or implied representation of having said authority. With respect to the individual surgeons, it was demonstrated that the papers delivered to their office were not properly addressed to them, nor compliant with the CPLR. The Court agreed and dismissed the action as against the individual defendants as well.
The plaintiff opposed the motion and requested an extension of time to serve the defendants, in the interest of justice. However, the Court agreed with the argument that the plaintiff’s papers made no showing sufficient to warrant an extension of time to serve process. The Court found that the plaintiff’s proffered excuses –that her failure to timely effect service upon the defendants was the result of (a) an inability to timely find a process server, (b) physical and mental anguish, and (c) the untimely death of her father –were not sufficient to support an extension of time to serve process. The Court also agreed that the plaintiff failed to demonstrate a meritorious cause of action, by failing to annex a medical expert affidavit to her papers.
The decision is exceptional in that it dismissed an entire action against a plaintiff Ab Initio, as it is axiomatic that the court’s preference is to decide matters on the merits. The bench is not often unyielding to the edicts of the jurisdictional statutes when enforcing them against plaintiffs. Yet, this decision offers further validation that our persistent efforts to defend the due process rights of our clients are worthwhile. The early dismissal also spared our clients the expense of protracted litigation.