Hafkin v. North Shore University Hospital12/26/2000
OPINION & ORDER
APPEAL by the plaintiffs, in two related actions to recover damages for medical malpractice, etc., from an order of the Supreme Court (John DiNoto, J.), dated April 28, 1999, and entered in Nassau County, which, in effect, granted the defendant 's motion to dismiss Action No. 2 on the ground that it was not timely commenced, and, inter alia, denied as academic that branch of their cross motion which was, in effect, to extend their time to serve the summons and complaint in Action No. 1.
Submitted-February 25, 2000
1204B
RITTER, J.P.
We are asked to determine whether the plaintiffs should receive a discretionary extension of their time to serve process commencing an action as authorized by CPLR 306-b. We find that the plaintiffs have failed to demonstrate either good cause or that the interest of justice would be served by granting such relief.
The plaintiff Rhoda Hafkin (hereinafter Hafkin) was admitted to the defendant hospital on May 19, 1995, for a bilateral knee replacement, and was discharged from the hospital on May 30, 1995. The plaintiffs allege that during this period, Hafkin sustained a decubitis ulcer to her right heel due to the negligent medical care provided by the defendant. Hafkin twice returned to the defendant hospital for further treatment, resulting in a final discharge on July 22, 1995. Hafkin did not return to the defendant hospital after July 22, 1995.
On January 22, 1998, one day before the expiration of the applicable Statute of Limitations (see, CPLR 214-a), the plaintiffs commenced Action No. 1 against the defendant by purchasing an index number and filing a summons and complaint in the office of the Nassau County Clerk (see, CPLR 304). It is undisputed that the defendant was never served in that action.
On September 11, 1998, after the expiration of the applicable Statute of Limitations, the plaintiffs commenced Action No. 2 by purchasing another index number and filing a second summons and complaint in the office of the Nassau County Clerk. The summons and complaint in Action No. 2 were served on the defendant on September 16, 1998, and proof of service was filed on September 17, 1998.
On October 5, 1998, the defendant served its answer, which, inter alia, asserted as an affirmative defense that the Statute of Limitations had expired. On January 8, 1999, the defendant moved to dismiss Action No. 2 as time-barred.
On February 4, 1999, the plaintiffs sought, inter alia, to extend their time to serve the summons and complaint in Action No. 1 pursuant to CPLR 306-b. In the order appealed from, the Supreme Court granted the defendant's motion to dismiss Action No. 2 and denied as academic the plaintiffs' cross motion to extend their time to serve the summons and complaint in Action No. 1. We affirm, although we deny the plaintiffs' cross motion on the merits.
Action No. 2 was neither timely commenced nor served (see, CPLR 214-a). Thus, it was properly dismissed as time-barred (see, CPLR 3211 ). Further, it is undisputed that the defendant was never served with the summons and complaint in Action No. 1, and thus was not served within 120 days of commencement as required by CPLR 306-b, as amended effective January 1, 1998 (see, L 1997, ch 476, ยงยง 1, 2). Accordingly, the dispositive issue on this appeal is whether the plaintiffs demonstrated their entitlement to an extension of the time to serve the summons and complaint in Action No. 1 pursuant to CPLR 306-b. We find that they did not.
In relevant part, CPLR 306-b provides: " f service is not made upon a defendant within the time provided in this section, t
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