Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEFF #s: 25-26, 28-39, 40, 44-48 DECISION & ORDER Defendant ABDO EDWARD KABARRITI, M.D. moves for an order, pursuant to CPLR §§5015(a)(4) and 5015(a)(5), vacating this Court’s order dated March 2, 2023 relative to motion sequence 1 and 2; and for an order, pursuant to CPLR §3211(a)(8), dismissing Plaintiff’s action and any cross claims against defendant ABDO EDWARD KABARRITI, M.D., with prejudice, claiming that the Court did not acquire jurisdiction over him due to Plaintiff’s failure to serve him with a summons and complaint and claiming that the attorneys for defendant New York City Health and Hospitals Corporation did not have authority to appear and file an Answer on his behalf in an action previously commenced and discontinued in New York County for the same malpractice claimed herein. In this action, and in an action commenced in New York County, Plaintiff alleges that New York City Health and Hospitals Corporation (NYCHHC), Coney Island Hospital and Dr. Abdo Edward Kabarriti provided negligent care and treatment from on or about May 22, 2018, through and including, April 30, 2019. During that time period, Dr. Kabarriti treated Plaintiff at NYCHHC’s Coney Island Hospital, but performed the subject surgery at SUNY Downstate Medical Center on May 25, 2018. Downstate is not, and never has been, a defendant in either action. Plaintiff first filed a Summons and Complaint bearing index # 805254/2019 in New York County on August 13, 2019. In that case, NYCHHC, Coney Island Hospital Center, and Dr. Kabarriti were named as defendants. It is noted that although the action was filed in New York County, the “County of Kings” was incorrectly indicated on the caption for the New York County action. By Answer dated January 14, 2020, defendants Dr. Kabarriti, NYCHHC and Coney Island Hospital filed a joint Verified Answer in the New York County action. The Attorney Verification, stating that the firm was representing defendants, Abdo Edward Kabarriti, M.D., New York City Health and Hospitals Corporation, and Coney Island Hospital Center, was signed by an associate of the law firm. Significantly, an affirmative defense of lack of personal jurisdiction was not interposed on behalf of Dr. Kabarriti in the Answer. At no time was a motion filed to amend the Answer to assert a personal jurisdiction affirmative defense in that action. A motion to dismiss pursuant to CPLR §3211(e) for lack of personal jurisdiction was not filed either. On December 7, 2019, Plaintiff filed a Summons and Complaint under this index number in Kings County. The Complaint names Dr. Kabarriti, New York City Health and Hospitals Corporation and Coney Island Hospital Center as defendants. While a motion to change venue or a stipulation to change venue would have been an appropriate option, the New York County action was instead discontinued by Stipulation dated June 25, 2020. In addition to discontinuing the New York County case, the Stipulation specifically states, “IT IS HEREBY FURTHER STIPULATED AND AGREED by and between the undersigned attorneys that Defendants shall file an answer to the action under Index Number 52663/2019[sic] via NYSCEF on or before July 29, 2020.” The stipulation was signed by the attorney for Plaintiff and “Attorneys for All Defendants.” There is no provision in the stipulation limiting or precluding the defendants from asserting any affirmative defenses in the Answer. Subsequently, an Answer was filed on July 29, 2020, but only on behalf of NYCHHC. In its Answer, NYCHHC admitted that Dr. Kabarriti is a physician duly licensed to practice medicine in the State of New York and is an employee of NYCHHC pursuant to §50-k of the General Municipal Law for care and treatment rendered at NYCHHC facilities only. On or about September 7, 2021, present counsel for Plaintiff was substituted in place of his original attorneys. By letter to the attorneys for NYCHHC, dated November 11, 2021, Plaintiff inquired about Dr. Kabarriti’s failure to file an Answer in the instant action. On or about May 26, 2022, via email to NYCHHC’s attorneys, Plaintiff’s counsel again inquired about Dr. Kabarriti’s failure to Answer. In response, Plaintiff’s counsel received a telephone call from NYCHHC’s counsel notifying Plaintiff that they would not be answering for Dr. Kabarriti. On September 28, 2022, Plaintiff filed a Notice of Default against Dr. Kabarriti. On October 21, 2022, Plaintiff moved for Default Judgment against Dr. Kabarriti or for order directing him to file an Answer. NYCHHC crossed moved for an Order denying the plaintiff’s motion for a default judgment against defendant Dr. Kabarriti and dismissing the entire action pursuant to CPLR §3211(10) for failure to join a necessary party, or in the alternative, compelling the mandatory joinder of the necessary party pursuant to CPLR §1001. As further discussed below, Dr. Kabarriti claims that NYCHHC had no authority to file an Answer on his behalf in the New York County action or had authority to enter into a stipulation with Plaintiff binding him to file an Answer responsive to the Complaint filed in Kings County. Dr. Kabarriti further claims that he was never served with process in either action. Consequently, he argues that the personal jurisdiction defense he asserted in the Answer he recently filed in the Kings County case remains viable. On this basis, he claims that his motion to dismiss for lack of personal jurisdiction should be granted. Plaintiff opposes the motion claiming that Dr. Kabarriti waived a personal jurisdiction defense by filing an Answer in the New York County action without interposing a jurisdictional defense and by not moving for dismissal of the New York County action within 60 days pursuant to CPLR §3211(e). Plaintiff also claims that Dr. Kabarriti waived a jurisdictional defense by stipulating to file an Answer in this case before that action was discontinued. NYCHHC does not submit opposition to this motion but concedes that Dr. Kabarriti was their employee during the dates he treated Plaintiff at Coney Island Hospital and that it can only indemnify Dr. Kabarriti for the care he provided to the plaintiff at the NYCHHC facility, Coney Island Hospital, but not for the surgery performed at Downstate. NYCHHC states, in papers filed relative to motion seq. 1 and 2, that it was their error to include Dr. Kabarriti’s name in the Answer their attorneys filed in the New York action, as they had no authority to do so. They also claim that it was not their intention to bind Dr. Kabarriti via the Stipulation of June 25, 2020. Motion sequence 1 and cross-motion sequence 2 came before this court on January 18, 2023. In their papers, NYCHHC represented to the court that Dr. Kabarriti was an employee of NYCHHC pursuant to General Municipal Law §50-k with regards to the care and treatment rendered at NYCHHC hospitals. On this basis and based upon the June 25, 2020 stipulation which stated that it was on behalf of “all defendants,” the court issued the Order dated March 2, 2023 directing an Answer be filed on behalf of Dr. Kabarriti. It must be noted that the court did not rule on the question of whether personal jurisdiction was obtained over Dr. Kabarriti. Indeed, Dr. Kabarriti’s right to assert a lack of personal jurisdiction affirmative defense or any other defenses is unaffected by the ruling of March 2, 2023. Dr. Kabarriti now appears and answers the Complaint for this index number and is represented by the Office of the Attorney General. In his Answer, filed on April 12, 2023, he asserts an Affirmative Defense of lack of personal jurisdiction. In support of this motion, Dr. Kabarriti affirms that he was never served in either action and that the attorneys for NYCHHC did not have authority to appear on his behalf in the New York County action or to enter into any Stipulation on his behalf. At the outset, the request herein to vacate the Order of March 2, 2023 directing that Dr. Kabarriti file an Answer in this action is denied as moot. As noted above, Dr. Kabarriti filed an Answer relative to this action (NYSCEF # 32) with the filing of the instant motion. Therefore, the questions which remain are whether Dr. Kabarriti waived a personal jurisdiction defense in the instant action either as a result of the Answer filed in the New York County action or as a result of the aforementioned stipulation. Secondly, assuming the court finds that Dr. Kabarriti has not waived the defense, it must determine the merit of his personal jurisdiction affirmative defense relative to the instant motion to dismiss. That aspect of Dr. Kabarriti’s legal relationship with NYCHHC which offers indemnification for treatment he rendered at Coney Island Hospital but not does not provide representation to the doctor personally becomes significant in analyzing NYCHHC’s authority to represent Dr. Kabarriti. By law, NYCHHC must indemnify its officers and employees pursuant to General Municipal Law §50–k. See Ebert v. New York City Health and Hosps. Corp., 82 NY2d 863 [1993]. In this regard, “NYCHHC stands in place of its employee…” Ebert v. New York City Health and Hosps. Corp., 82 NY2d at 866. GML §50-k (e)(3) provides in relevant part: The city shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim approved by the corporation counsel and the comptroller, provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties Further, GML §50-k (e)(4) states in relevant part: The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon (a) delivery to the corporation counsel at the office of the law department of the city by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within ten days after he is served with such document, and (b) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the city based upon the same act or omission, and in the prosecution of any appeal. Such delivery shall be deemed a request by the employee that the city provide for his defense pursuant to this section. In the event that the corporation counsel shall assume an employee’s defense and thereafter the employee fails to or refuses to cooperate in the formation or presentation of his defense, the court shall permit the corporation counsel to withdraw his representation ten days after giving written notice to the employee of his intention to discontinue such representation. (Emphasis added). In this matter, there is no question that NYCHHC consents to indemnify Dr. Kabarriti for the care and treatment he rendered to plaintiff at Coney Island Hospital (as an employee) and not for any treatment rendered at Downstate Medical Center. The statutory obligation of the municipal defendant to indemnify Dr. Kabarriti for treatment at their institution does not confer upon them a duty to represent him for treatment he rendered elsewhere as the statute requires that the employee be acting within the scope of public employment when the claimed act or omission occurred. Further, as to whether the NYCHHC attorneys were vested with authority to represent Dr. Kabarriti, GML 50-K sets forth that the duty to defend is dependent upon delivery of service of process within 10 days of being served and a request for representation. In this matter, there is no showing that Dr. Kabarriti was served with process or that he delivered a complaint to the municipality requesting representation. Indeed, his affidavit states the opposite as regards to requirements. In sum, there is no showing that that the conditions of GML50-k (e)(4) have been met to support a finding that pursuant to this section NYCHHC had authority to legally represent Dr. Kabarriti personally. The next question is whether Dr. Kabarriti waived his jurisdictional defense in the instant action by not asserting same in the New York County Answer or by not moving for dismissal within 60 days pursuant to CPLR §3211(e). As to the latter, CPLR §3211(e) states, “(a) motion based upon a ground specified in paragraph two, seven or ten of subdivision (a) of this rule may be made at any subsequent time or in a later pleading, if one is permitted; an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship.” Clearly, CPLR §3211 (e) requires that a motion to dismiss based upon lack of jurisdiction be made within 60 days of the Answer or the defense is deemed waived. DeSena v. HIP Hosp., Inc., 258 AD2d 555 [2d Dept 1999]; Dimond v. Verdon, 5 AD3d 718 [2d Dept 2004]. Further “(a) defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss (internal citations omitted).” Cadlerock Joint Venture, L.P. v. Kierstedt, 119 AD3d 627, 628 [2d Dept 2014]. There is no question that the Answer in the New York County action did not contain a personal jurisdictional defense and that a motion to dismiss pursuant to CPLR §3211(e) was not made. On this basis, Plaintiff argues that Dr. Kabarriti, having waived a jurisdictional defense in the New York action, is precluded from asserting the defense in the Kings County case. Assuming Dr. Kabarriti waived jurisdictional defenses in the New York County case, the action filed in Kings County is a separate and distinct action from that which was filed and discontinued in New York County. Plaintiff unequivocally terminated the New York County action by filing the stipulation of Discontinuance. An action is terminated by agreement where there has been a showing “that the parties have executed an express, unconditional stipulation of discontinuance” Teitelbaum Holdings v. Gold, 48 NY2D 51, 56 (1979); see also Pegalis v. Gibson, 237 A.D.2d 420, 421 (2d Dept 1997); Conroy v. Conroy, 215 AD3d 630 [2d Dept 2023]. Here, the evidence shows that Plaintiff and NYCHHC executed an express, unconditional stipulation of discontinuance with regards to the New York County action. The court rejects any argument that the agreement to file an Answer by the date certain affected the force of the discontinuance. Consequently, the fact that Dr. Kabarriti appeared in the New York action and did not interpose a personal jurisdiction affirmative defense or did not move to dismiss the action as against him within 60 days, is of no consequence to the instant action. As Plaintiff terminated the first action of his own accord, by stipulation, the Answer filed in New York County, its defects, and its waiver of a jurisdictional defense does not survive the termination of that action. Plaintiff further argues even if the court were to accept that NYCHHC was not authorized to stipulate on behalf of Dr. Kabarriti, the stipulation of June 25, 2020 bound “all defendants” and should therefore constrain Dr. Kabarriti to the parameters of his original Answer. He argues that it results in a waiver of Dr. Kabarriti’s jurisdictional defense in the instant case. The Second Department holds that a “stipulation made by the attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the stipulation (internal citations omitted).” Chae Shin Oh v. Jeannot, 160 AD3d 701, 703 [2d Dept 2018]; Davidson v. Metro. Tr. Auth., 44 AD3d 819, 819 [2d Dept 2007]. However, an attorney’s appearance, without more, is insufficient to warrant a finding that the attorney was authorized to act on his behalf. See Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 117 AD2d 135, 148 [2d Dept 1986]. Additionally, “apparent authority can bind a principal only where there was some misleading conduct on the part of the principal. The actions of the agent alone cannot suffice (Ford v. Unity Hosp., 32 N.Y.2d 464, 472–473).” UA-Columbia Cablevision of Westchester, Inc. v. Fraken Builders, Inc., 96 AD2d 509, 510 [2d Dept 1983]. In Davidson v. Metro. Tr. Auth., the Second Department affirmed a lower court’s decision enforcing a stipulation of settlement signed by an attorney who claimed they had no authority to bind the Plaintiff. The court noted that the attorney had a lengthy involvement in the case, had engaged in settlement negotiations and had appeared at pre-trial conferences. The court added that “‘[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation’ (Hallock v. State of New York, 64 NY2d 224, 230).” Davidson v. Metro. Tr. Auth., 44 AD3d 819, 819 [2d Dept 2007]. In support of his claim that the lawyers for NYCHHC had no authority to act on his behalf, Dr. Kabarriti submits his affidavit stating that he never authorized NYCHHC’s attorneys to accept service of process or file an Answer on his behalf. He states that he did not authorize the NYCHHC attorneys to enter into a stipulation on his behalf. He was informed in June 2021 that the NYCHHC attorneys were representing NYCHHC for the treatment he rendered solely at Coney Island Hospital. He first learned that a legal appearance was required of him in November 2022 and, at that time, he requested legal representation from the Attorney General’s office as the surgery he performed at Downstate Medical Center formed the basis of some of the claims asserted against him. He further avers that he has not been served with process in either the New York case or on the instant action. It is the opinion of this court that the acts of the NYCHHC attorneys do not support a finding that they had apparent authority to bind Dr. Kabarriti in the Kings County action or to waive Dr. Kabarriti’s rights. The involvement of the attorneys for NYCHHC with Dr. Kabarriti in the New York County case was very limited and admittingly a result of an error. These attorneys have not made any representations on behalf of Dr. Kabarriti in the instant Kings County action. Furthermore, no evidence has been offered to show that the acts of NYCHHC’s attorneys were ratified by Dr. Kabarriti. There is also no support for any claim that Dr. Kabarriti misled the plaintiff in any way, or participated in, the actions of the NYCHHC attorneys. Finally, although the plain language in the body of the June 25, 2020 stipulation states “defendants,” (plural) and the signature line states “attorney for all defendants,” the court finds Dr. Kabarriti was not involved with the execution of the stipulation and that NYCHHC acted in error and as such, had no authority to bind Dr. Kabarriti in any manner. Notwithstanding the above, nothing in the stipulation acts as a waiver of a personal jurisdictional defense. To be clear, nothing in the language of the stipulation precludes any affirmative defenses, or as relevant here, a personal jurisdiction defense from being interposed in the Kings County action. Indeed, other than setting forth a deadline for the filing of an Answer, there is no limiting language whatsoever in the stipulation. In light of the above assessment, the court finds that Dr. Kabarriti has not waived his personal jurisdiction defense in the instant action. Turning to the question of whether personal jurisdiction was acquired over Dr. Kabarriti, the court finds that it was not. There is no evidence that service of process upon Dr. Kabarriti was ever effectuated in either the New York County action or the Kings County action. “It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action (Green Point Sav. Bank v. Taylor, 92 AD2d 910; Bernardo v. Barrett, 87 AD2d 832, affd 57 NY2d 1006).” Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 117 AD2d 135, 139 [2d Dept 1986]. “Ordinarily, a process server’s sworn affidavit of service attesting to the proper delivery of a summons to a defendant constitutes prima facie evidence of service in the manner described (internal citations omitted).” Fed. Natl. Mtge. Assn. v. Castoldi, 187 AD3d 988, 989 [2d Dept 2020]. Here, plaintiff has not made a showing that service of process was effectuated upon Dr. Kabarriti. The New York State Unified Court System’s electronic filing system (NYSCEF), does not reflect that an affidavit of service was filed by the plaintiff indicating that Dr. Kabaritti was served with a summons and complaint. Additionally, an affidavit of service of the Summons and Complaint was not annexed as an exhibit to either this motion or to motion sequences 1 and 2. Additionally, Dr. Kabarriti avers that he was never served. Although some of Plaintiff’s arguments may be persuasive under other circumstances, here, where service is contested, no proof of service is submitted, a lack of personal jurisdiction affirmative defense is interposed in the Answer responsive to the instant action, and there has been no waiver of a personal jurisdiction defense in any other manner, Plaintiff’s arguments fail. Dr. Kabarriti’s only appearance in this action is in conjunction with the filing of this Answer and with the filing of the instant motion. “An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him, and therefore confers personal jurisdiction over him, unless he asserts an objection to jurisdiction either by way of motion or in his answer (CPLR 320 [b]; 3211 [a] [8]; Colbert v. International Sec. Bur., 79 AD2d 448).” Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 117 AD2d at 140. Where the defendant’s only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived. Cadlerock Joint Venture, L.P. v. Kierstedt, 119 AD3d 627, 628 [2d Dept 2014]. As there is no showing that Dr. Kabarriti was served with process and Dr. Kabarriti’s jurisdictional affirmative defense was properly interposed in his Answer, the action against him must be dismissed for lack of personal jurisdiction. Accordingly, the motion to dismiss pursuant to CPLR §3211(a)(8) is GRANTED and the action against ABDO EDWARD KABARRITI, M.D is dismissed with prejudice; other relief not specifically addressed was considered and is denied. This constitutes the decision and order of the court. Dated: May 22, 2023
