Charles v. Wolfson

• Decision Date: 06 March 2019
• Docket Number: 26799/18
• Parties: Renee D. CHARLES, Plaintiff, v. William WOLFSON, DMD, and William Wolfson, DMD, PC, Defendants.
• Court: New York Supreme Court

62 Misc.3d 1224 (A)
113 N.Y.S.3d 831 (Table)

Renee D. CHARLES, Plaintiff,
v.
William WOLFSON, DMD, and William Wolfson, DMD, PC, Defendants.

26799/18

Supreme Court, Bronx County, New York.

Decided March 6, 2019

Plaintiff's Attorney: Lance Ehrenberg, Esq., 56 West 45th Street, New York, New York 10036, 1(212)730-0200

Defendants' Attorney: Robert A. Rosenfeld, Esq., COUMO LLC, 535 Fifth Ave., 25th Floor, New York, New York 10007, 1(212)448-9933

Joseph E. Capella, J.

The following papers numbered 1 to 4 read on this motion, noticed on December 19, 2018, on the Motion Calendar of _________.

PAPERS NUMBERED

NOTICE OF MOTION, CROSS MOTION, AFFIDAVITS & EXHIBITS 1, 2

ANSWERING AFFIDAVIT AND EXHIBITS 3

REPLY AFFIDAVIT AND EXHIBITS 4

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS DECIDED AS FOLLOWS:

By notice of motion, the plaintiff in this dental malpractice action seeks a default judgment ( CPLR 3215 ) against the defendants for their failure to answer the summons and complaint. In opposition, defendants cross move for dismissal of the complaint based on improper service ( CPLR 3211(a)(8) ) and statute of limitations ( CPLR 3211(a)(5), and alternatively for a change of venue ( CPLR § 510(1) ). Addressing plaintiff's motion first, in order to establish entitlement to a default judgment, the plaintiff is required to submit proof of valid service of process, and the facts constituting the cause of action and the default¹ ( CPLR 3215(f) ; Miterko v. Peaslee , 80 AD3d 736 [2nd Dept 2011] ).

The proof plaintiff provides for service of process are the two affidavits of service annexed to the motion. According to these affidavits of service, the defendants were served with the summons and complaint on June 19, 2018, by delivering same to a person of suitable age and discretion at 960 Morris Park Avenue, Bronx, NY 10462. Copies of the summons and complaint were mailed to defendants on June 21, 2018, in accordance with CPLR 308(2), and it appears that these affidavits of service were filed with the Court on August 7, 2018. However, according to CPLR 308(2), the affidavit of service "shall be filed with the clerk of the court" within 20 days of either the delivery or mailing, whichever was later. In this case they were filed almost 60 days after the mailings. Given plaintiff's failure to...