Wright v Kok-Min Kyan  2017 NY Slip Op 32057(U) September 28, 2017 Supreme Court, New York County Docket Number: 805475/2016 Judge: Eileen A. Rakower is a medical malpractice case that explains what to do when service of the summons and complaint has gone awry.

“Plaintiffs served the Summons with Notice upon Lenox Hill Hospital by service of process upon Ryann Cordaro (“Ms. Cordaro”) at 2000 Marcus Avenue, New Hyde Park, New York, on December 22, 2016. A process server’s affidavit constitutes prima facie evidence of proper service. (Matter of Nazarianv. Monaco Imports, Ltd., 255 A.D.2d 265 [1st Dept. 1998]). A defendant’s “sworn, nonconclusory denial of service” is sufficient to dispute the veracity or content of the process server’s affidavit. (NYCTL 1998-1 Trust v. Rabinowitz, 7A.D.3d 459 [1st Dept. 2004]). ”

“In her sworn affidavit, Ms. Cordero states that she is a Senior Executive Assistant in the Legal Department ofNorthwell Health. Ms. Cordero further states that she is “not an agent authorized to receive service on behalf of Lenox Hill Hospital, or any other hospital, nor [has she] ever been an employee of Lenox Hill Hospital.” Ms. Cordero states that the building located at 2000 Marcus Avenue, the location where service was made, is the address for the Northwell Health, and not Lenox Hill Hospital.

Plaintiffs do not challenge defendants’ claim that the service made upon Lenox Hill Hospital via delivery of the Summons with Notice to Ms. Cordero was defective. Instead, by way of cross motion, plaintiffs seek additional time pursuant to CPLR § 306-b to serve their pleading upon Lenox Hill Hospital. ”

“This Court may exercise its discretion to extend the 120-day period in CPLR §306-b to enable plaintiffs to properly serve Lenox Hill Hospital. CPLR §306-b provides that “[i]f service is not made upon a defendant within the [120-day period] provided in this section, the court, upon ~o~ion, shall dismiss the action without prejudice … or upon good cause shown or in the interest of justice, extend the time for service.”

A “good cause” extension requires a showing of reasonable diligence in trying to effect proper service upon a defendant. (Henneberry v. Borstein, 91 A.D.3d 493, 496 [1st Dep’t 2012]). Good cause has been found where “the plaintiffs failure to timely serve process is a result of circumstances beyond its control.” (Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 32 [1st Dep’t 2009]). The “good cause” extension, however, does notinclude conduct that is considered to be “law office failure.” (Henneberry, 91 A.D.3d at 496).

An extension “in the interest of justice” is broader and more flexible than a “good cause” extension and can include law office failures as long as there is no prejudice to the defendant. (Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105 [2001] [“CPLR 306-b provides foran additional and broader standard, i.e., the ‘interest of justice,’ to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant”]). A court “may consider [plaintiffs] diligence, or lack thereof, along with any other relevant factor … , including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiffs request for the extension of time, and prejudice to defendant.” (Henneberry, 91 A.D.3d at 496, citing Leader, 97 N.Y.2d at 105-106). “