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). “

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.