MAJID v. MANNA (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendants Geno Manna and Garden OB/GYN appeal from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), entered October 10, 2024.  The order, insofar as appealed from, denied that branch of those defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendant Geno Manna for lack of personal jurisdiction and granted those branches of the plaintiff's cross-motion which were pursuant to CPLR 306–b to extend the time to serve the defendant Geno Manna with the summons and complaint and pursuant to CPLR 308(5) to authorize an alternative method for service of process upon the defendant Geno Manna.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff's cross-motion which was pursuant to CPLR 308(5) to authorize an alternative method for service of process upon the defendant Geno Manna, and substituting therefor a provision denying that branch of the cross-motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In January 2021, the plaintiff commenced this action against, among others, the defendants Geno Manna and Garden OB/GYN (hereinafter together the defendants).  According to an affidavit of service, Manna was served on February 4, 2021, by delivery of a copy of the summons and complaint to a named person designated a “Co–Worker,” followed by a mailing of a copy of the same papers on February 5, 2021.  Manna failed to appear or answer the complaint.  In an order entered March 17, 2022, the Supreme Court granted the plaintiff's unopposed motion, inter alia, for leave to enter a default judgment against Manna (hereinafter the March 2022 order).

In July 2024, the defendants moved, inter alia, pursuant to CPLR 5015(a) to vacate so much of the March 2022 order as granted those branches of the plaintiff's unopposed motion which were for leave to enter a default judgment against Manna and thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Manna for lack of personal jurisdiction.  The plaintiff did not contest the fact that service upon Manna was defective, and in response to the motion, cross-moved, among other things, pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon Manna and pursuant to CPLR 308(5) to authorize an alternative method for service of process upon Manna.

In an order entered October 10, 2024, the Supreme Court, inter alia, denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Manna for lack of personal jurisdiction and granted those branches of the plaintiff's cross-motion which were pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon Manna and pursuant to CPLR 308(5) to authorize an alternative method for service of process upon Manna.  The defendants appeal.

“Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (Citimortgage, Inc. v. Ramcharran, 240 AD3d 738, 740 [internal quotation marks omitted];  see Citimortgage, Inc. v. Unger, 230 AD3d 1226, 1227).  Here, the defendants rebutted the presumption of proper service upon Manna with affidavits of Manna and of the chief operating officer/clinical director for Garden OB/GYN, which demonstrated that Manna “was no longer employed by Garden OB/GYN in 2021” and that he did not work at the subject location in 2018 or 2021 (see Silvering v. Sunrise Family Med., P.C., 161 AD3d 1021, 1022;  1136 Realty, LLC v. 213 Union St. Realty Corp., 130 AD3d 590, 591).

With respect to that branch of the plaintiff's cross-motion which was pursuant to CPLR 306–b, “an extension of time to serve the summons and complaint under CPLR 306–b in the interest of justice is available where, as here, service is timely made within the 120–day period but is subsequently found to have been defective” (Estate of Fernandez v. Wyckoff Hgts. Med. Ctr., 162 AD3d 742, 744 [internal quotation marks omitted] ).  “The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant” (Bank of N.Y. v. Hernandez, 243 AD3d 854, 855 [internal quotation marks omitted];  see HSBC Bank, USA v. Gibatov, 183 AD3d 555, 556).

Owing to the tolling provision of executive orders issued due to the COVID–19 pandemic (see Executive Order [A. Cuomo] Nos. 202.8, 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, 202.72 [9 NYCRR 8.202.8, 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.55, 8.202.55.1, 8.202.60, 8.202.67, 8.202.72] ), the time to commence the action would have expired in June 2021 (see Baker v. 40 Wall St. Holdings Corp., 226 AD3d 637, 638–639).  Thus, this action, which was commenced against Manna in January 2021, was commenced well within the statute of limitations.  Although the plaintiff did not cross-move to extend the time to serve Manna with the summons and complaint until August 2024, the cross-motion was in response to the defendants' motion, which raised the issue of defective service.  Further, Manna had notice of this action in 2023, and he failed to assert any prejudice.  Indeed, based upon medical records, he was able to state that his treatment comported with the applicable standard of care.

However, alternative service pursuant to CPLR 308(5) was unwarranted because there was no evidence that service upon Manna by ordinary means was impracticable (see MTGLQ Invs., L.P. v. Mayers, 209 AD3d 1009, 1011).  Therefore we modify the order entered October 10, 2024, by deleting the provision thereof granting that branch of the plaintiff's cross-motion which was pursuant to CPLR 308(5) to authorize an alternative method for service of process upon Manna, and substituting therefor a provision denying that branch of the cross-motion.  As so modified, we affirm the order insofar as appealed from.

BARROS, J.P., CHAMBERS, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.