Motion to Dismiss for Improper Service Won

On March 13, 2024, Mamie Stathatos-Fulgieri and Mara Cella won a Motion to Dismiss on the basis of improper service. This action was commenced against a Brooklyn hospital and a physician alleging medical malpractice.  Counsel attempted service on both the doctor and the facility by mailing the summons and complaint to the address of the hospital and failed to meet the requirements per CPLR.  Affirmations from both the physician and the medical director established that neither were personally served.  We argued that not only was his attempted service under CPLR 308 (4) inadequate in that he failed to annex a copy, but plaintiff also failed to demonstrate due diligence in attempting service pursuant to CPLR 308 (1) and (2) prior to his attempt at “nail and mail” service under CPLR 308 (4). Lastly, the 120 days permitted to properly serve pursuant to CPLR 306-b had expired as of the filing of the instant motion.  The Court found that service was wholly improper and dismissed the action in its entirety.