Best v. Guthrie Med. Grp., P.C.

• Decision Date: 22 August 2019
• Docket Number: 662,CA 19–00101
• Parties: Jody C. BEST, Individually, and as the Administrator of the Estate of Donald L. Best, also known as Donnie L. Best, Deceased, Plaintiff–appellant, v. GUTHRIE MEDICAL GROUP, P.C., et al., Defendants, Guthrie Robert Packer Hospital, Silviu Marica, M.D., Ahmed Abdelbaki, M.D., Alexander Johnston, M.D., and David Bertsch, M.D., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1048
107 N.Y.S.3d 258

Jody C. BEST, Individually, and as the Administrator of the Estate of Donald L. Best, also known as Donnie L. Best, Deceased, Plaintiff–appellant,
v.
GUTHRIE MEDICAL GROUP, P.C., et al., Defendants,

Guthrie Robert Packer Hospital, Silviu Marica, M.D., Ahmed Abdelbaki, M.D., Alexander Johnston, M.D., and David Bertsch, M.D., Defendants–Respondents.

662
CA 19–00101

Supreme Court, Appellate Division, Fourth Department, New York.

August 22, 2019

WELCH, DONLON & CZARPLES PLLC, CORNING (ANNA CZARPLES OF COUNSEL), FOR PLAINTIFF–APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN G. FELTER OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.

107 N.Y.S.3d 260

MEMORANDUM AND ORDER

175 A.D.3d 1049

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion seeking summary judgment dismissing the complaint against defendant Guthrie Robert Packer Hospital and reinstating the complaint against that defendant, and as modified the order is affirmed without costs.

Memorandum: Plaintiff, individually and as the administrator of the estate of Donald L. Best (decedent), commenced this medical malpractice and wrongful death action seeking damages for the alleged negligent treatment provided to the decedent at defendant Guthrie Robert Packer Hospital (hospital), a facility located in Sayre, Pennsylvania, by Silviu Marica, M.D., Ahmed Abdelbaki, M.D., Alexander Johnston, M.D., and David Bertsch, M.D. (individual defendants). On defendants' motion for summary judgment pursuant to CPLR 3212, Supreme Court dismissed the complaint against the hospital and the individual defendants (collectively, defendants) on the ground of lack of personal jurisdiction.

As an initial matter, we reject plaintiff's contention that the court should have decided the motion under the standard applicable to motions brought under CPLR 3211(a). The court applied the correct standard to the motion, which was brought after service of the answers (see CPLR 3211[e] ; 3212[a]; see generally Williams v. Beemiller, Inc., 159 A.D.3d 148, 152, 72 N.Y.S.3d 276 [4th Dept. 2018], affd 33 N.Y.3d 523, 106 N.Y.S.3d 237, 130 N.E.3d 833, 2019 N.Y. Slip Op. 03656 [2019] ).

Contrary to plaintiff's further contention, the hospital did not consent to the general jurisdiction of New York courts by registering as a foreign corporation with the New York State Department of State (see Aybar v. Aybar, 169 A.D.3d 137, 147–152, 93 N.Y.S.3d 159 [2d Dept. 2019], lv dismissed 33 N.Y.3d 1044, 103 N.Y.S.3d 17, 126 N.E.3d 1057 [2019] ; Wilderness USA, Inc. v. DeAngelo Bros. LLC, 265 F.Supp.3d 301, 312–314 [W.D.N.Y.2017] ). We likewise reject plaintiff's contention that defendants Marica and Bertsch consented to New York personal jurisdiction solely based on their becoming licensed to practice medicine in New York (see generally Ingraham v. Carroll, 90 N.Y.2d 592, 600, 665 N.Y.S.2d 10, 687 N.E.2d 1293 [1997] ;

...