Charles v. Lee

Charles v Lee 2024 NY Slip Op 32988(U) August 20, 2024 Supreme Court, Kings County Docket Number: Index No. 521272/2023 Judge: Genine D. Edwards Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 08/22/2024 10:46 AM INDEX NO. 521272/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/22/2024 At an !AS Tenn Part 80 of the upreme ourt of the State of ew York held in and for the County of Kings, at the Courthouse, at 360 Adams Street Brooklyn, New York, on the 20th day of August 2024. PREME CO RT OF THE STATE OF WYORK CO TY OF KING TERESA HER E CHARLES, Index o.: 521272/2023 Plaintiff, DECI ION AND ORDER - against - GREGORY LEE, M.D. and YU LA GONE Defendants. The following e-filed papers read herein: y F OS.: otice of Motion Affirmation, and Exhibits ............ ... .. . ... .. .... .. . .. .. .. . .. ....... ..... ... 29-35 Notice of Cross-Motion Affirmation in Opposition and Support and Exhibits .............. .39-43 Affirmation in Opposition and Reply .................. . .... ... ..... .... . .. .. ............... ......... 44-45 In this action to recover damag for medical malpractice Gregory Lee M.D. ("Dr. Lee") moved to dismiss this action pursuant to PLR §3012(b) for plaintiffs failure to timely serve the summons and complaint and pursuant to CPLR §3211 (a)(5) and §3212 arguing that Teresa Herse Charles ( Plaintiff') claim is barred by the applicable statute of limitations. Plaintiff opposed the motion and cro s-moved pursuant to CPLR §306(b ), eking to extend her time to erve the summons and complaint nunc pro tune. D fendant opposed plaintiffs cross-motion. FACTS Plaintiff pre ent d to NYU Langone (' YU'") on eptember 11 , 2018 for a pars plana virectomy for the r mo al of Jen fragments left behind from a pre ious cataract remo al surgery, performed at th hospital. Plaintiff medical records indicate that after the procedure she 1 [* 1] 1 of 4 FILED: KINGS COUNTY CLERK 08/22/2024 10:46 AM INDEX NO. 521272/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/22/2024 consulted with different doctors at YU complaining of visual floaters pseudophakia of the left eye dry eye syndrome, and a history of dislocated intraocular lens. Specifically, plaintiff saw Dr. Lee on January 2 2019 and June 19 20 I 9 Dr. lan J. Jordan on August 5 2019 and June 29 2020, and Dr. David Reves on January 31 , 2022. The last visit with Dr. Lee occurred on June 19 2019. Dr. Lee nded his employment with YU in July 2019 and relocated to Atlanta Georgia. Plaintiff continued to return to and consulted with different doctors for her ongoing eye condition until eptember 2022. The summons and complaint for the instant matter was filed on July 25, 2023. Dr. Lee was serv d a copy of the summons and complaint on pril 3, 2024 253 days after the summons and complaint was filed with th County Jerk. LAW Pursuant to CPLR § 306(b), a summons and complaint must bes rved within 120 days of filing with the ounty Clerk but the court may extend the time for service upon a showing of good cau e or in the interest of justice. A showing of good cause requires plaintiff to exercis reasonable diligence to serve the summons and complaint upon the defendants. Pierre v. Grueso 219 A.D.3d 1535, 197 .Y .. 3d 266 (2d Dept. 2023). In con idering an application for an extension of time to serve in the intere t of justice a court may consider diligence including the expiration of the statute of limitations the meritorious nature of the cause of action the length of delay in rvice the promptness of a plaintiffs r quest for the extension of time, and prejudice to the defendant. Hourie v. orth Shore-Long Is. Jewish Health Sys. , Jnc.-Lenox Hill Hosp., 150 A.D .3d 707 54 .Y.S.3d 53 (2d Dept. 2017) . The statute of limitations for a medical malpractice claim in e York is two and a half years from the date of the alleged malpractice. CPLR §214(a). Where a plaintiff is receiving 2 [* 2] 2 of 4 FILED: KINGS COUNTY CLERK 08/22/2024 10:46 AM INDEX NO. 521272/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/22/2024 continuous treatment for the same illness, injury or condition that gave ri se to the said act omis ion or failure the statute of limitations run from the date of the last tr atment. Id. The continuous treatment doctrine contains three principal elements: '(l) the patient 'continued to seek and in fact obtained an actual course of treatment from th defendant ph sician during the relevant p riod '; (2) th course of treatment was for the arne conditions or complaints underlying the plaintiffs medical malpractice claim ; and (3) the treatment is ' continuous"' Hail v. Bologne e, 210 A.D.3d 958 178 .Y. .3d 564 (2d Dept. 2022)· Hillary v. Gerstein, 178 A.D.3d 674 114 N.Y.S.3d 440 (2d Dept. 2019); Gomez v. Kalz, 61 A.D.3d 108, 874 .Y.S.2d 161 (2d Dept. 2009). Dr. Lee argued that this action hould be di mi sed pursuant to CPLR 30 12(b) becau the plaintiff served him 253 days after the summon and complaint was filed with the County Clerk which is well beyond CP R 306(b)'s 120-da requirement. In opposition plaintiff cont nded that sh is entitled to an extension of time to serve becau e Dr. Lee ended his employment with Y in July 2019 and moved to Georgia preventing her from serving him timely. In support of her cro s-motion plaintiff annexed an affidavit by a process server which indicates that three attempts were made to erve Dr. Lee during a three-week period. pecifically attempts were mad on July 31 2023 August 14, 2023, and August 23 , 2023 . The affidavit evidenced that an out-of-state addre search resulted in multiple addresses for Dr. Lee, and that after a process of elimination, the process server was able to pinpoint Dr. Lee s location and served him on pril 3 2024, 253 day after the summons and complaint was filed with the County Clerk. The affidavit did not state what day this out-of-state search was conducted how man addresse the search produced, or hov man addresses were served before the process serv r as able to pinpoint Dr. Lee actual location, inter alia. Plaintiff did not establish good 3 [* 3] 3 of 4 FILED: KINGS COUNTY CLERK 08/22/2024 10:46 AM INDEX NO. 521272/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/22/2024 caus to grant the exten ion ince she failed to demonstrate that she exerci ed reasonably diligent efforts in attempting to effect proper service upon Dr. Lee. Pierre v. Grueso 2 19 A.D .3d 1535, 197 N.Y.S.3d 266 (2d D pt. 2023) ; Rodriguez v. onsol. Edison Co. ofNew York, inc., 163 A.D.3d 734 81 .Y.S.3d 404 (2d Dept. 2018). Likewise, plaintiffs interest of ju tice argument fails given the length of delay of service and the lack of promptness to request an extension. Feng Li v. Peng 190 A.D.3d 950, 141 .Y.S.3d 77 (2d Dept. 2021); Hourie v. North Shm-e-Long Is. Jewish Health Sys. Jnc.-Lenox Hill Hosp. 150 A.D.3d 707. Inde d plaintiff did not mov for an extension until 54 days after Dr. Lee moved for dismissal. The econd Department has held that filing a motion to extend the time to serv after a motion to dismiss has been filed was insufficient proof that granting an extension was in the interests of justice. Umana v. Sofola 149 .D.3 d 1138 (2d Dept. 2017); Riccio v. Ghulam , 29 A.D .3d 558 815 .Y .. 2d 125 (2d Dept. 2006). Accordingly it is ORDERED that Gr gory Lee M.D. s motion to dismiss pursuant to PLR § 3012(b) is granted and the complaint is dismissed as to this defendant, and it is furth r ORDERED that Teresa Herse Charles' cros -motion is denied and it i further ORDERED that the Clerk shall amend the caption accordingly, and it is further ORDERED that Gregory Lee M.D. 's coun l is directed to electronically serve a copy of this decision/order with notice of entry on the other parties' respective coun el and to electronically file an affidavit of service with the Kings County Clerk and it is further This constitutes the Decision and Order of this Court. For Clerks use only MG / MD Motion Seq.# : 2 & 3 J.. ~ HON. GENINB D. EDWARDS 4 [* 4] 4 of 4