BRITT v. Phillip J. Rados, M.D., Defendant-Respondent.

Reset A A Font size: Print

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

Carmen BRITT, Individually and as Executor of the Estate of Lula Baity, Deceased, Plaintiff-Appellant, v. BUFFALO MUNICIPAL HOUSING AUTHORITY, et al., Defendants, Phillip J. Rados, M.D., Defendant-Respondent.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, LUNN, FAHEY, AND PINE, JJ. Glenn Edward Murray, Buffalo, for Plaintiff-Appellant. Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Kevin D. McCarthy of Counsel), for Defendant-Respondent.

Plaintiff and the original co-plaintiff, now plaintiff's decedent, commenced this action for damages asserting various tort theories of liability by the timely filing and service of a summons with notice.   Counsel for defendant Phillip J. Rados, M.D. served a notice of appearance and demand for the complaint on plaintiff's attorney.   More than 20 days thereafter, plaintiff's attorney filed a second summons in the same action, using the same index number and adding two new parties.   A copy of that second summons (hereafter, supplemental summons) was served by mail on the attorney for Rados, together with the complaint.   Rados amended his answer to assert the defenses of lack of jurisdiction and statute of limitations, and Supreme Court granted his motion to dismiss the complaint against him based on those defenses.   That was error.

Contrary to the contention of Rados and the apparent conclusion of the court, plaintiff's failure to comply with the requirements of CPLR 1003 by obtaining leave of court to add new parties before filing the supplemental summons did not deprive the court of jurisdiction over Rados.   Noncompliance with CPLR 1003 results in the failure to obtain personal jurisdiction over the added defendants (see e.g. Crook v. E.I. du Pont de Nemours Co. [Appeal No. 2], 181 A.D.2d 1039, 582 N.Y.S.2d 581, affd. 81 N.Y.2d 807, 595 N.Y.S.2d 388, 611 N.E.2d 289;  Brown v. Marine Midland Bank, 224 A.D.2d 1016, 637 N.Y.S.2d 535, lv. dismissed 88 N.Y.2d 919, 646 N.Y.S.2d 987, 670 N.E.2d 228), but such noncompliance has no effect on the court's jurisdiction over the original defendants.   Contrary to the further contention of Rados, the improper filing and service of the supplemental summons did not effect an “abandonment” of the summons with notice, and thus his reliance on Matter of Gershel v. Porr, 89 N.Y.2d 327, 653 N.Y.S.2d 82, 675 N.E.2d 836 is misplaced.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the motion is denied, and the complaint against defendant Phillip J. Rados, M.D. is reinstated.