Hobbins v. N. Star Orthopedics, PLLC
| Court | New York Supreme Court Appellate Division |
| Citation | 148 A.D.3d 784,49 N.Y.S.3d 169 |
| Parties | Verna HOBBINS, respondent-appellant, v. NORTH STAR ORTHOPEDICS, PLLC, et al., defendants, Paul Ackerman, etc., appellant-respondent. |
| Decision Date | 08 March 2017 |
148 A.D.3d 784
49 N.Y.S.3d 169
Verna HOBBINS, respondent-appellant,
v.
NORTH STAR ORTHOPEDICS, PLLC, et al., defendants,
Paul Ackerman, etc., appellant-respondent.
Supreme Court, Appellate Division, Second Department, New York.
March 8, 2017.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone, Nancy Liu, and Sofya Uvaydov of counsel), for appellant-respondent.
G. Wesley Simpson, P.C., Brooklyn, NY, for respondent-appellant.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
In an action, inter alia, to recover damages for medical malpractice, the defendant Paul Ackerman appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Sweeney, J.), dated January 21, 2015, as, in effect, denied his motion pursuant to CPLR 3211(a) (8) to dismiss the complaint insofar as asserted against him and granted the plaintiff's motion pursuant to CPLR 306–b for an extension of
time to serve the summons and complaint upon him, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as (1) granted the separate motion of the defendant Paul Ackerman to vacate so much of an order of the same court dated August 14, 2013, as marked off the calendar his motion to dismiss the complaint insofar as asserted against him, and thereupon to restore his motion to the calendar, (2) granted that branch of the separate motion of the defendant Paul Ackerman which was to confirm a referee's report (Archer, Ct.Atty.Ref.) dated December 23, 2013, determining that service upon him was defective, and (3), in effect, upon reargument, adhered to a determination in an order of the same court dated May 28, 2012, denying that branch of her prior motion which was for leave to enter a default judgment against the defendant Paul Ackerman, and denied, as academic, that branch of her motion which was for leave to renew her prior motion for leave to enter a default judgment against that defendant given that the service on him was determined to be defective.
ORDERED that the order is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof, in effect, denying the motion of the defendant Paul Ackerman pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him, and substituting therefor a provision granting that motion, and (2) by deleting the provision thereof granting the plaintiff's motion pursuant to CPLR 306–b for an extension of time to serve the summons and complaint upon the defendant Paul Ackerman, and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendant Paul Ackerman.
On February 7, 2011, the plaintiff commenced this action to recover damages for medical malpractice. The plaintiff purportedly served the defendant Paul Ackerman (hereinafter the defendant) at his actual place of business pursuant to CPLR 308(2) in February 2011, and again in June 2011. When the defendant failed to answer or appear in this action, the plaintiff moved, in January 2012, inter alia, for leave to enter a default judgment against the defendant. In an order dated May 28, 2012, the Supreme Court denied the plaintiff's motion without prejudice to renew. After the plaintiff moved, inter alia, for leave to renew and reargue her motion by notice dated June 28, 2012, the defendant
appeared and moved to dismiss the complaint pursuant to CPLR 3211(a)(8) insofar as asserted against him for lack of personal jurisdiction. Thereafter, the
plaintiff moved pursuant to CPLR 306–b for an extension of time to serve the defendant. The court directed a special referee to hear and report on the validity of service of process, and that hearing was held in May 2013. On August 14, 2013, the defendant failed to appear at a court proceeding for his motion to dismiss, and, on the same date, the court, inter alia, marked the defendant's motion off the calendar. In November 2013, the defendant moved to vacate so much of the August 14, 2013, order as marked off the...
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E. Sav. Bank, FSB v. Campbell, 2016–01737
...90 N.Y.S.3d 215over Parker and Campbell was obtained by proper service of process (see Hobbins v. North Star Orthopedics, PLLC, 148 A.D.3d 784, 787, 49 N.Y.S.3d 169 ; HSBC Bank USA, N.A. v. Hamilton, 116 A.D.3d 663, 664, 983 N.Y.S.2d 585 ). Where personal jurisdiction has not been obtained ......
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U.S. Bank Nat'l Ass'n v. Fink
...(see Estate of Fernandez v. Wyckoff Hgts. Med. Ctr., 162 A.D.3d 742, 743–744, 80 N.Y.S.3d 271 ; Hobbins v. North Star Orthopedics, PLLC, 148 A.D.3d 784, 787–788, 49 N.Y.S.3d 169 ; Wilkins v. Burgess, 25 A.D.3d 794, 795, 807 N.Y.S.2d 574 ).Accordingly, the Supreme Court should have denied th......
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DLJ Mortg. Capital, Inc. v. Christie
...(see Estate of Fernandez v. Wyckoff Hgts. Med. Ctr., 162 A.D.3d at 743–744, 80 N.Y.S.3d 271 ; Hobbins v. North Star Orthopedics, PLLC, 148 A.D.3d 784, 787–788, 49 N.Y.S.3d 169 ). However, the plaintiff demonstrated that an extension of time to serve the defendants was warranted in the inter......
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Williams v. St. John's Episcopal Hosp.
...the evidence that jurisdiction over the defendant was obtained by proper service of process (see Hobbins v. North Star Orthopedics, PLLC, 148 A.D.3d 784, 787, 49 N.Y.S.3d 169 ; Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343, 756 N.Y.S.2d 92 ), we agree with the court's determinat......