Borek v. Seidman

• Docket Number: Index No. 805351/2021,MOTION SEQ. No. 014
• Decision Date: 28 July 2023
• Citation: 2023 NY Slip Op 32617 (U)
• Parties: NACHUM BOREK, Plaintiff, v. DR. STUART SEIDMAN, DR. ELIZABETH SUBLETTE, NEWYORK PRESBYTERIAN/WEILL CORNELL MEDICAL CENTER, and PAYNE WHITNEY PSYCHIATRIC CLINIC, Defendants.
• Court: New York Supreme Court

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2023 NY Slip Op 32617(U)

NACHUM BOREK, Plaintiff, v. DR. STUART SEIDMAN, DR. ELIZABETH SUBLETTE, NEWYORK PRESBYTERIAN/WEILL CORNELL MEDICAL CENTER, and PAYNE WHITNEY PSYCHIATRIC CLINIC, Defendants.

Index No. 805351/2021, MOTION SEQ. No. 014

Supreme Court, New York County

July 28, 2023

Unpublished Opinion

MOTION DATE 05/05/2023

PRESENT: HON. JOHN J. KELLEY Justice

DECISION + ORDER ON MOTION

John J. Kelley Judge:

The following e-filed documents, listed by NYSCEF document number (Motion 014) 338, 339, 341 were read on this motion to/for DEFAULT JUDGMENT/INQUEST.

In this action to recover damages for medical malpractice, the plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment against the defendant Dr. Stuart Seidman and to proceed to inquest on the issue of damages against Seidman. Seidman did not timely oppose the motion. The motion is nonetheless denied.

Where a plaintiff moves for leave to enter a default judgment, he or she must submit proof of service of the summons and complaint upon the defaulting defendant, proof of the defendant's default, and proof of the facts constituting the claim (see CPLR 3215[f]; Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003]; Gray v Doyle, 170 A.D.3d 969, 971 [2d Dept 2019]; Rivera v Correction Officer L Banks, 135 A.D.3d 621 [1st Dept 2016]; Atlantic Cas Ins. Co. v RJNJ Services, Inc. 89 A.D.3d 649 [2d Dept 2011]; see also Manhattan Telecom. Corp, v H &A Locksmith, Inc., 21 N.Y.3d 200, 202 [2013]).

The relevant affidavit of service here established that, on February 16, 2022, the plaintiff served process upon Seidman at his office, located at 617 West End Avenue, Suite 1B, New York, New York 10024, by "delivering a true copy thereof to PIERRE 'DOE' a person of suitable age and discretion, at the actual place of business, dwelling house, or usual place of abode in the state, and mailing, as indicated below." The affidavit of service, however, did not further indicate that an additional copy of the summons and complaint was in fact mailed to any address. Nonetheless, the plaintiff's process server included the following language in the affidavit of service: "Successful Attempt; Feb 16, 2022, 3:09 pm EST at 617 WEST END AVENUE, NEW YORK, NY 10024 received by PIERRE 'DOE' (Refused last name), stated he is authorized to accept. Access to residence denied." The plaintiff filed the affidavit of service on February 24, 2022. Because the plaintiff's process server did not mail an additional copy of the summons and complaint to Seidman's "actual place of business, dwelling place, or usual place of abode" (CPLR 308[2]), the plaintiff did not effectuate "substituted service" upon Seidman pursuant to CPLR 308(2). Rather, the plaintiff in effect relies upon CPLR 308(3), which permits service upon a defendant's authorized agent. If, in fact, Pierre "Doe" were authorized to accept service of process on behalf of Seidman (see Cellino & Barnes, P. C. v Martin, Lister & Alvarez, PLLC, 117 A.D.3d 1459, 1460 [4th Dept 2014]; see also Fashion Page v Zurich Ins. Co., 50 N.Y.2d 265, 273 [1980] [process server's reasonable belief of recipient's authority is the crucial factor]; Passed v Tomlins, 141 A.D.3d 816, 818, n [3d Dept 2016]; Arvanitis v Bankers Trust Co., 286 A.D.2d 273, 273 [1st Dept 2001]), Seidman would have had to answer, appear, or move with respect to the complaint no more than 30 days after the service upon Pierre "Doe" (see CPLR 3012[c]), that is, on or before March 18, 2022.

Inasmuch as a process server's affidavit of service is prima facie evidence of proper service (see Johnson v Deas, 32 A.D.3d 253, 254 [1st Dept 2006]), and Seidman did not oppose this motion, the plaintiff made a prima facie showing that Seidman was properly served with process pursuant to CPLR 308(3). The plaintiff's own affidavit established that Seidman neither answered, moved, nor appeared in a timely manner on or before March 18, 2022, and that Seidman thus was in default as of March 21, 2022, the first business day thereafter (see General Construction Law § 25-a). The plaintiff made the instant motion on March 3, 2023 (see CPLR 2211) and, thus, within one year after Seidman's default. The plaintiff's motion is thus timely (see CPLR 3215[c]). While the court notes that Seidman has since made a motion both to vacate his default and permit him to make a late motion to dismiss the complaint against him on several grounds, including improper service of process (MOT SEQ 016), the court need not, in connection with the instant motion, address Seidman's contention that service was improper, since this motion is being denied on the ground that the plaintiff failed to present proof of facts underlying his claim against Seidman. Hence, the court simply will assume, for the purposes of this unopposed motion, that service of process was properly effectuated upon Seidman.

With respect to the proof of the facts constituting the claim,

"CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action (see, 4 Weinstein-Korn-Miller, NY Civ Prac paras. 3215.22-3215.27). The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts"

(Joosten v Gale, 129 A.D.2d 531, 535 [1st Dept 1987]; see Martinez v Reiner, 104 A.D.3d 477, 478 [1st Dept 2013]; Beltre v Babu, 32 A.D.3d 722, 723 [1st Dept 2006]). Stated another way, while the "quantum of proof necessary to support an application for a default judgment is not exacting . . . some firsthand confirmation of the facts forming the basis of the claim must be proffered" (Guzetti v City of New York, 32 A.D.3d 234, 236 [1st Dept 2006]). In other words, the proof submitted must establish a prima facie case (see id:, Silberstein v Presbyterian Hosp., 95 A.D.2d 773 [2d Dept 1983]). "Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" (Green v Dolphy Constr. Co., 187 A.D.2d 635, 636 [2d Dept 1992]; see Walley v Leatherstocking Healthcare, LLC, 79 A.D.3d 1236, 1238 [3d Dept 2010]). In moving for leave to enter a default judgment, the plaintiff must "state a viable cause of action" (Fappiano v City of New York, 5 A.D.3d 627, 628 [2d Dept 2004]). In evaluating whether the plaintiff has fulfilled this obligation, the defendant, as the defaulting party, is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71 [2003]). The court, however, must still reach the legal conclusion that those factual allegations establish a prima facie case (see Matter of Dyno v Rose, 260 A.D.2d 694, 698 [3d Dept 1999]).

Proof that the plaintiff has submitted "enough facts to enable [the] court to determine that a viable" cause of action exists (Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; see Gray v Doyle, 170 A.D.3d at 971) may be established by an affidavit of a party or someone with knowledge, authenticated documentary proof, or by a complaint verified by the plaintiff that sufficiently details the facts and the basis for the defendant's liability (see CPLR 105[u]; Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; Gray v Doyle, 170 A.D.3d at 971; Voelker v Bodum USA, Inc., 149 A.D.3d 587, 587 [1st Dept 2017]; Al Fayed v Barak, 39 A.D.3d 371, 371 [1st Dept 2007]; see also Michael v Atlas Restoration Corp., 159 A.D.3d 980, 982 [2d Dept 2018]; Zino v Joab Taxi, Inc., 20 A.D.3d 521, 522 [2d Dept 2005]; see generally Mitrani Plasterers Co., Inc. v SCG Contr. Corp., 97 A.D.3d 552, 553 [2d Dept 2012]). For purposes of CPLR 3215, a complaint verified by a party may be employed as proof of the facts constituting the claim (see CPLR 105[u]), but only where it sets forth sufficient, detailed evidentiary facts, rather than mere conclusions (see Celnick v Freitag, 242 A.D.2d 436, 437 [1st Dept 1997]). A verified complaint that is conclusory in nature and devoid of factual allegations constituting the claim is insufficient to demonstrate the requisite proof (see Cohen v Schupler, 51 A.D.3d 706, 707 [2d Dept 2008]; Luna v Luna, 263 A.D.2d 470 [2d Dept 1999]). In other words, the verified complaint must "set forth the facts constituting the alleged negligence" (Beaton v Transit Facility Corp., 14 A.D.3d 637, 637 [2d Dept 2005]).

With respect to the proof of the facts underlying his claims, the plaintiff relied only upon his complaint, his own affidavit and his mother's affidavit. Crucially, in the context of a medical or dental malpractice action, an affidavit or affirmation of merit from an expert is required unless the matters alleged are within the ordinary experience and knowledge of a lay person (see Fiore v Galang, 64 N.Y.2d 999, 1000-1001 [1985]; Bollinger v Mark Mordechai Liechtung, DMD, P.C., 2023 NY Slip Op 31537[U], *5, 2023 NY Mise LEXIS 2231, *6 [Sup Ct, N.Y. County, May 5, 2023] [Kelley, J.]; Checo v Mwando, 2022 NY Slip Op 31223[U], *4, 2022 NY Mise LEXIS 1865, *5 [Sup Ct, N.Y. County, Apr. 7, 2022] [Kelley, J.]; Garcia v Solomon, 2020 NY Misc. LEXIS 17635, *2 [Sup Ct, Bronx County, Jun. 19, 2020]; Charles v Wolfson, 62 Misc.3d 1224[A], 2019 NY Slip Op 50251 [U], *1, 2019 NY Misc. LEXIS 866, *3 [Sup Ct, Bronx County, Mar 6, 2019]; see gener...