Martin v. Ruditser
| Docket Number | Index Number 720660 2019 |
| Decision Date | 09 November 2021 |
| Citation | 2021 NY Slip Op 33161 (U) |
| Parties | DEATRA MARTIN, as the Administratrix of the Estate of YOLANDA DUNOVANT, Deceased, Plaintiff, v. DENNIS J. RUDITSER, M.D., NIGEL VERASAMI, M.D. THE PAVILION AT QUEENS FOR REHABILITATION & NURSING, BERNARD A.ABRAMOVICI, M.D., SALIM A. KHOURY, M.D., RAJ JAIN, M.D., JAVIER P. BURGOS, M.D., and NEW YORK PRESBYTERIAN QUEENS HOSPITAL a/k/a NEW YORK PRESBYTERIAN QUEENS, Defendants Motion Seq. No. 1 |
| Court | New York Supreme Court |
Date March 24, 2021
The following numbered papers were read on this motion by defendant Dennis J. Ruditser, M.D. (Ruditser) seeking to dismiss the complaint against him due to lack of personal jurisdiction and the expiration of the applicable statute of limitations, pursuant to CPLR §§ 3211 (a) (5), (8) (9), 308, 306-b and Business Corporation Law § 306, and cross motion by plaintiff seeking to strike the first and fifth statutory defenses in Ruditser's answer, asserting lack of personal jurisdiction and that the claim is time barred.
Notice of Motion-Affidavits-Exhibits............. EF 51-60
Notice of Cross Motion-Affidavits-Exhibits....... EF 92-102
Reply Affidavits-Exhibits........................ EF 116, 118-120
Upon the foregoing papers, it is ordered that the motion and cross motion are determined as follows:
On December 10, 2019, plaintiff commenced this action against defendants, alleging claims of negligence and medical malpractice against Ruditser, arising out of his care of decedent, Yolanda Dunovant, during her admission at co-defendant facility, the Pavillion at Queens Rehabilitation & Nursing (the Pavillion) from March 28, 2017 through June 27, 2017. Pursuant to the affidavits of service on file Ruditser was served at his actual place of business on December 16, 2019 as well as personally served on November 13, 2020. Ruditser interposed an answer on November 20, 2020 wherein he asserted as a first statutory defense, that the court lacks personal jurisdiction over him and as a fifth statutory defense, that the action is time barred.
Ruditser seeks to dismiss this action contending that the action is time barred and that the purported service upon him was not valid. According to Ruditser, the December 16, 2019 service was not proper as he was served at the Pavillion, which was not his "actual place of business" (CPLR 308 (2)) but merely a facility at which he had privileges. As such, he contends that the action was not commenced against him until he was personally served with the summons and complaint on November 16, 2020[1], which was beyond the two and a half year statute of limitations period prescribed in CPLR 214-a for medical malpractice actions, and was not subject to tolling. Ruditser argues that Governor Cuomo's Executive Order 202.8 and its subsequent extensions as a result of the COVID-19 pandemic served to suspend, not toll, the statute of limitations, rendering the personal service untimely. Unlike a toll, a suspension delays the expiration of a time period until its end date, rather than suspends the running of an applicable statute of limitations for a certain amount of time.
Plaintiff opposes the application and cross moves, seeking to strike Ruditser's first and fifth statutory defenses, or in the alternative, to extend the time to serve the summons and complaint on Ruditser. Plaintiff maintains that both the December 16, 2019 service on Ruditser at his "actual place of business" as well as the subsequent November 16, 2020[2] personal service on defendant were timely and proper. Plaintiff submits that the aforesaid executive orders tolled the one hundred twenty days time limit to serve the defendant (CPLR 306-b). In support, inter alia, plaintiff submits the affidavits of service of Husam Al- Atrash (Al-Atrash), dated December 17, 2019 and filed December 18, 2019, and Jan Lowdermilk (Lowdermilk), dated November 16, 2020 and filed on December 2, 2020.
At the outset, the court notes that contrary to defendant's contention, this action was timely commenced by the filing of a summons and complaint on December 10, 2019, which was within two and a half years from the alleged last continuous treatment date of June 27, 2017. The court shall now consider whether defendant has been properly served within 120 days from the date of the action's commencement (CPLR 306-b).
Initially, plaintiff bears the burden of proving that personal jurisdiction was acquired over a defendant. (See HSBC Bank USA, N.A. v Assouline, 111 A.D.3d 603 [2d Dept 2019]; Wells Fargo Bank, N.A. v Decesare, 154 A.D.3d 717 [2d Dept 2017]; Wells Fargo Bank, NA v Chaplin, 65 A.D.3d 588 [2009]). ``A process server's affidavit of service constitutes prima facie evidence of valid service." (Wells Fargo, N.A., 154 A.D.3d at 717; see Flanagan v Delaney, 194 A.D.3d 694 [2d Dept 2021); HSBC Bank USA, N.A., 111 A.D.3d 603; U.S. Bank, N.A. v Tauber, 140 A.D.3d 1154 [2d Dept 2016]; Wachovia Bank, N.A. v Greenberg, 138 A.D.3d 984 [2d Dept 2016].) A defendant may rebut the presumption of proper service established by a process server's affidavit of service, by a sworn denial of service addressing the specific facts contained in the affidavit. (See HSBC Bank USA, N.A., 111 A.D.3d 603; U.S. Bank, N.A., 140 A.D.3d 1154; Bank of N.Y. v Samuels, 107 A.D.3d 653 [2d Dept 2013]; Scarano v Scarano, 63 A.D.3d 716 [2d Dept 2009].)
Here plaintiff's affidavit of service by Al-Atrash constituted prima facie evidence of proper service upon the...
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