Percival v. Northwell Health Sys.

• Decision Date: 12 June 2019
• Docket Number: Index No. 10839/16,2018–03568
• Citation: 173 A.D.3d 916,102 N.Y.S.3d 263
• Parties: Valerie PERCIVAL, Respondent, v. NORTHWELL HEALTH SYSTEM, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 916

102 N.Y.S.3d 263

Valerie PERCIVAL, Respondent,

v.NORTHWELL HEALTH SYSTEM, et al., Appellants, et al., Defendants.

2018–03568

Index No. 10839/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 29, 2019

June 12, 2019

Benvenuto & Slattery (Rubin Sheeley Paterniti Gonzalez Kaufman LLP, New York, N.Y. [James W. Tuffin ], of counsel), for appellants.

Bergstein & Ullrich, LLP, New Paltz, N.Y. (Stephen Bergstein of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendants Northwell Health System, North Shore LIJ Glen Cove Hospital, North Shore University Hospital, and Dehdashti Amir appeal from an order of the Supreme Court, Suffolk County(Denise F. Molia, J.), dated January 16, 2018.The order, insofar as appealed from, denied those defendants' motion pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them for failure to timely serve a complaint, and, sua sponte, pursuant to CPLR 3012(d), extended the plaintiff's time to serve a complaint upon those defendants and compelled those defendants to accept the complaint.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, pursuant to CPLR 3012(d), extended the plaintiff's time to serve the complaint upon the defendants Northwell Health System, North Shore LIJ Glen Cove Hospital, North Shore University Hospital, and Dehdashti Amir, and compelled those defendants to accept the complaint, is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (seeCPLR 5701[c] ); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, and the motion of the defendants Northwell Health System, North Shore LIJ Glen Cove Hospital, North Shore University Hospital, and Dehdashti Amir pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them for failure to timely serve a complaint is granted; and it is further,

ORDERED that one bill of costs is awarded to the appellants.

On December 23, 2016, the plaintiff, appearing pro se, commenced this action by filing an amended summons with notice.On April 18, 2017, the defendants Northwell Health System, North Shore LIJ Glen Cove Hospital, North Shore University Hospital, and Dehdashti Amir(hereinafter collectively the moving defendants) served a demand for a complaint.By notice of motion dated May 25, 2017, the moving defendants moved pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them for failure to timely serve a complaint.The plaintiff opposed the motion and served a complaint on June 26, 2017.Insofar as asserted against the moving defendants, the complaint sounded in medical malpractice.The Supreme Court denied the moving defendants' motion and, sua sponte, pursuant to CPLR 3012(d), extended the plaintiff's time to serve the complaint and compelled the defendants to accept the complaint.The moving defendants appeal.

"To avoid dismissal for failing to timely serve a complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under CPLR 3012(d), a plaintiff has to demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action"( Ganchrow v. Kremer , 157 A.D.3d 771, 772, 69 N.Y.S.3d 352;seeHarris v. City of New York , 121 A.D.3d 852, 854–855, 995 N.Y.S.2d 578;Mitrani Plasterers Co., Inc. v. SCG Contr. Corp. , 97 A.D.3d 552, 947 N.Y.S.2d 339 ).

Here, even assuming that the plaintiff had a...