Connell v. Hayden

• Decision Date: 19 October 1981
• Citation: 443 N.Y.S.2d 383,83 A.D.2d 30
• Parties: Robert CONNELL, et al., Respondents, v. Charles W. HAYDEN, Defendant, Ole Thor Jonassen, Defendant-Appellant, Charles W. Hayden, M.D. and Ole Thor Jonassen, M.D., P.C., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 383

443 N.Y.S.2d 383

83 A.D.2d 30

Robert CONNELL, et al., Respondents, v. Charles W. HAYDEN, Defendant Ole Thor Jonassen, Defendant-Appellant Charles W. Hayden, M.D. and Ole Thor Jonassen, M.D., P.C., Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 19, 1981.

Anthony L. Schiavetti, New York City (Norman Bard, Brooklyn, of counsel, Joan Brody, New York City, on the brief), for appellants

Bruce G. Clark & Associates, New York City (Bruce G. Clark, New York City, of counsel, and Joanne I. Gabrynowicz, New York City, on the brief), for respondents.

Before DAMIANI, J.P., and LAZER, COHALAN and THOMPSON, JJ.

DAMIANI, Justice Presiding.

This is an appeal by defendant Dr. Ole Thor Jonassen from so much of an order of the Supreme Court, Nassau County, as denied

his motion for summary judgment upon the grounds of lack of in personam jurisdiction and the Statute of Limitations and an appeal by Dr. Charles W. Hayden, M.D., and Dr. Ole Thor Jonassen, M.D., P.C., an unnamed and unserved professional service corporation through which the named defendants practiced medicine, from so much of said order as found it subject to in personam jurisdiction and granted plaintiffs leave to amend their complaint to state a cause of action against it.

THE FACTS

The defendants Charles W. Hayden and Ole Thor Jonassen are medical doctors engaged in the practice of surgery. Prior to August 1, 1971 their association took the form of a partnership and since that date they have practiced as a professional service corporation.

This malpractice action was commenced against the two doctors by a former patient named Robert Connell to recover damages for personal injuries and by his wife Dorothy to recover damages for loss of consortium and services. Jurisdiction over the person of Dr. Hayden was obtained by personally delivering a copy of the summons and complaint to him on September 20, 1977. On the same day, plaintiffs attempted to effectuate service upon Dr. Jonassen by delivering his copy of the summons and complaint to Dr. Hayden and by mailing an additional copy thereof to Dr. Jonassen's place of business. The summons and complaint named only the two doctors as individual defendants and did not allege that they practiced either as a partnership or as a professional service corporation.

Dr. Jonassen served an answer which denied the material allegations of the complaint and asserted the defense of lack of personal jurisdiction and the affirmative defense of the Statute of Limitations. Plaintiffs' bill of particulars alleged that the acts of malpractice by Dr. Jonassen were committed between September 14, 1972 and October 20, 1972 at the office of the defendants and at the Community Hospital at Glen Cove.

On or about February 22, 1980 Dr. Jonassen made a motion which he denominated as one to dismiss plaintiffs' complaint pursuant to CPLR 3211 (subd. pars. 5 and 8) upon the grounds of lack of personal jurisdiction and the bar of the Statute of Limitations. The motion was made after joinder of issue and for that reason it was actually one for summary judgment pursuant to CPLR 3212 on grounds enumerated in subdivision (a) of CPLR 3212 (see CPLR 3212, subd. and CPLR 3211, subd. Since the two defenses were asserted in defendant Jonassen's answer and since there is no indication that he made a prior motion to dismiss under CPLR 3211 without raising those defenses, they were not waived and were properly presented on that defendant's motion for summary judgment (CPLR 3211, subd. Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3212:20; Siegel, NY Practice, § 283).

In support of Dr. Jonassen's motion for summary judgment it was argued that mailing the summons and complaint to his place of business rather than his residence rendered the attempted service ineffective to obtain jurisdiction over his person and that since the acts of malpractice were alleged by plaintiffs to have occurred in 1972 and the action was not commenced until 1977, it was barred by the Statute of Limitations. In opposition to the motion, plaintiffs' attorney argued that there had been sufficient compliance with CPLR 308 to obtain personal jurisdiction and that since Dr. Jonassen and Dr. Hayden practiced medicine as a "partnership", service upon Hayden conferred jurisdiction upon the partnership. It was also claimed that the action was commenced within the applicable limitation of time for malpractice actions after the alleged "partnership" ceased treating plaintiff Robert Connell. In reply, the attorney for defendant Dr. Jonassen argued, inter alia, that the defendants practiced in the form of a professional service corporation, not a partnership, and that in any event, plaintiffs had not obtained jurisdiction over a partnership or corporation by Special Term denied the motion for summary judgment holding, inter alia, (1) that since no party had submitted evidence as to the last date of treatment, it could not determine the Statute of Limitations issue, (2) that since the named individual defendants practiced as a professional service corporation, service upon Dr. Hayden conferred jurisdiction over the corporation pursuant to CPLR 311, and (3) that since Dr. Hayden and Dr. Jonassen were united in interest, the Statute of Limitations was "tolled" by personal delivery of the summons to Hayden (citing CPLR 203, subd. and therefore the plaintiffs could "now effectuate personal service on Dr. Jonassen." The court went on to grant plaintiffs leave to serve an amended complaint "to reflect that these two doctors practiced medicine as a professional corporation". Dr. Jonassen and the corporation have appealed.

serving only Dr. Hayden because the summons and complaint did not separately name either such entity.

The memorandum decision of Special Term and the appellate briefs of the parties have consistently intertwined arguments concerning the two logically separate and distinct defenses of the Statute of Limitations and lack of personal jurisdiction. Each is governed by different rules (see, e.g. CPLR art. 2 for limitations of time and CPLR art. 3 for jurisdiction; see, also, CPLR 3211, subd. pars. 5 and 8, and subd. The former concerns the period of time within which an action must be commenced and the latter concerns the act of service of process (see Morrison v. Foster, 80 A.D.2d 887, 437 N.Y.S.2d 371). Their point of coincidence is that limitations of time are most often computed with reference to the date upon which the act of service took place (see CPLR 203, subd. [b]).

IN PERSONAM JURISDICTION

We first address the question of personal jurisdiction. Plaintiffs had the burden of proof on that issue (Jacobs v. Zurich Ins. Co., 53 A.D.2d 524, 525, 384 N.Y.S.2d 452; Saratoga Harness Racing Assn. v. Moss, 26 A.D.2d 486, 490, 275 N.Y.S.2d 888, affd. 20 N.Y.2d 733, 283 N.Y.S.2d 55, 229 N.E.2d 620). They claim that they obtained jurisdiction over Dr. Jonassen by delivering a copy of the summons and complaint to Dr. Hayden, a person of suitable age and discretion, at Dr. Jonassen's business address and by mailing a copy of the process to that same business address rather than to Dr. Jonassen's last known residence as required by subdivision 2 of CPLR 308. We have repeatedly held to the contrary, that subdivision 2 means what it says and that mailing the copy to the named defendant's office will not satisfy the statute (Chalk v. Catholic Med. Center of Brooklyn & Queens, 58 A.D.2d 822, 396 N.Y.S.2d 864; Glikman v. Horowitz, 66 A.D.2d 814, 411 N.Y.S.2d 365; Frankel v. French & Polyclinic Med. School & Health Center, 70 A.D.2d 947, 948, 417 N.Y.S.2d 776; cf. Pober v. Boulevard Hosp., 72 A.D.2d 600, 421 N.Y.S.2d 103; Feinstein v. Bergner, 48 N.Y.2d 234, 239, 422 N.Y.S.2d 356, 397 N.E.2d 1161). Since delivery and mailing to the defendant's place of business was not authorized by subdivision 2, it was incumbent upon plaintiffs to obtain a court order, in advance, authorizing utilization of the method of service actually adopted here upon a showing that service under subdivisions 1, 2 or 4 of CPLR 308 was impracticable (CPLR 308, subd. 5; Chalk v. Catholic Med. Center of Brooklyn & Queens, supra, 58 A.D.2d p. 824, 396 N.Y.S.2d 864). Accordingly, service upon Dr. Jonassen was defective, his defense of lack of jurisdiction was well taken, his motion for summary judgment on that ground should have been granted and thereupon plaintiffs' complaint against him should have been dismissed.

We also note in this regard that Special Term erred in denying Dr. Jonassen's motion for summary judgment dismissing plaintiffs' complaint for lack of in personam jurisdiction upon the ground that since he was "united in interest" with Dr. Hayden under CPLR 203 (subd. service upon the latter "tolled" the Statute of Limitations and plaintiffs could now effectuate service upon Jonassen. As we said in the "basic effect of provision is that timely service upon any one of two or more defendants who are 'united in interest' as to a claim, permanently deprives all codefendants of the defense of the Statute of Limitations (Zeitler v. City of Rochester, 32 A.D.2d 728 1 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 203.05). This does not, however, mean that the court has jurisdiction over the unserved defendant. To acquire personal jurisdiction over the codefendant, the plaintiff still must properly serve a summons upon him."

case of Morrison v. Foster, 80 A.D.2d 887, 888, 437 N.Y.S.2d 371, supra:

Thus, even assuming for purposes of argument the correctness of Special Term's conclusion that Doctors Hayden and Jonassen were united in interest, the failure of plaintiffs to properly effectuate service upon the latter mandated that his motion to dismiss for lack of jurisdiction be granted.

The next jurisdictional problem in this case concerns the professional service corporation through which the named defendant doctors practiced medicine. Special Term...