Markoff v. South Nassau Community Hosp.

• Decision Date: 31 January 1983
• Citation: 458 N.Y.S.2d 672,91 A.D.2d 1064
• Parties: Ruth MARKOFF, as Executrix, etc., Appellant, v. SOUTH NASSAU COMMUNITY HOSPITAL, Defendant, and Marilyn R. Eckstein et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 672

458 N.Y.S.2d 672

91 A.D.2d 1064

Ruth MARKOFF, as Executrix, etc., Appellant, v. SOUTH NASSAU COMMUNITY HOSPITAL, Defendant and Marilyn R. Eckstein et al., Respondents.

Supreme Court, Appellate Division Second Department.

Jan. 31, 1983.

Weingrad & Weingrad, P.C., New York City (Harry B. Frank and Stephen A. Weingrad, New York City, of counsel), for appellant.

Bower & Gardner, New York City (Steven J. Ahmuty, Jr., New York City, of counsel), for respondents.

Before GIBBONS, J.P., and O'CONNOR, RUBIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for wrongful death, etc., plaintiff appeals from (1) an order of the Supreme Court, Queens County, dated May 27, 1981, which granted the motion of the defendants Eckstein, Schulman and Hochstim to vacate a prior ex parte order of the same court directing that expedient service be made upon those defendants pursuant to CPLR 308 (subd. 5), and (2) an order of the same court, dated March 29, 1982 which, inter alia, dismissed the complaint against defendants Eckstein, Schulman and Hochstim pursuant to CPLR 3211 (subd. [a], par. 5) as barred by the applicable Statute of Limitations.

Orders affirmed, with one bill of costs.

Plaintiff moved without notice for an order pursuant to subdivision 5 of CPLR 308 directing expedient service by delivery and mailing of a copy of the summons and complaint to the "last known business address" of the individual defendants Eckstein, Schulman and Hochstim. CPLR 308 (subd. 5) authorizes expedient service "in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section", which provide for service by personal delivery, delivery and mailing, and affixing and mailing, respectively.

While it has been observed that the precondition of impracticability under CPLR 308 (subd. 5) "is not capable of easy definition" (Liebeskind v. Liebeskind, 86 A.D.2d 207, 210, 449 N.Y.S.2d 226), it "should not be construed to require a showing that service under [subdivisions 1, 2 and 4] could not be made with 'due diligence' " (Coyne v. Coyne, 83 A.D.2d 774, 443 N.Y.S.2d 472; compare McLaughlin, 1982 Supplemental Practice Commentary, McKinney's Cons Law of NY, Book 7B, CPLR 308:5, with Siegel, N.Y. Practice, § 75). The meaning of "impracticable" will depend upon the facts and circumstances of the particular case; however, a "plaintiff seeking to effect expedient service must make some showing that the other prescribed methods of service could not be made" (Simens v. Sedrish, 82 A.D.2d 915, 440 N.Y.S.2d 687).

In the case at bar, the only showing made by plaintiff in support of her application for expedient service was the conclusory affirmation of her attorney, which, in relevant part, merely stated that:

"Personal service upon the [individual defendants] pursuant to paragraphs 1, 2 and 4 of CPLR 308, has been attempted and has been impracticable * * * [P]ersonal service cannot be made by leaving the summons and complaint with a receptionist and mailing it to the place of business * * * See attached affidavit of service * * * for reasons for failing to make service by the methods prescribed by paragraphs 1, 2, and 4 of CPLR 308 (affidavit defective)."

The affidavit of service annexed to plaintiff's supporting papers indicated that only one attempt had been made at delivery to a person of suitable age and discretion and mailing to the individual defendants at the premises of the defendant hospital. Clearly, such supporting papers were insufficient because they failed to set forth factual allegations to...