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Hospital Service deemed ineffective as clerk acceptance unauthorized


Nassau, Supreme Court

New York Law Journal
Tuesday, June 11, 2002

Justice Shifrin

By Order dated April 25, 2002 the Court [Parga, J.] directed a traverse hearing in this action in the context of a motion by defendant Nassau Health Care Corp., s/h/a Nassau County Medical Center (“NCMC”) to dismiss under CPLR 3211(a)(8). The case was assigned to me from the Referee’s Calendar of May 28, 2002 and went forward to conclusion on that date. Counsel for the parties stipulated to empower me to hear and determine the issue. It was further agreed that the papers originally submitted to the Court on the pending motion be deemed in evidence and part of the hearing record.

Two (2) witnesses testified before me — Gerard Geisweller, the process server, and the employee alleged to have been served, Tamara Whitehurst, a clerk in the Medical Records Department.

Before considering the testimony of these witnesses on the issue of the facts and circumstances surrounding the actual claimed service on December 14, 2001, certain factual findings regarding the basic physical layout of a portion of the 1st floor at NCMC and the practice and procedure in place in connection with its receipt of judicial process must be stated. There is a hallway on the first floor of the hospital off the lobby which contains the Administrative Offices and within close proximity thereof the Medical Records Department. There is a window/office within the Administrative Offices where service of summonses and complaints in actions against NCMC is accepted and subpoenas for the production of hospital records are accepted at the window/office at the Medical Records Department. Mr. Geisweller, a process server for 25 years, was fully familiar with both the physical layout and this practice and procedure prior to the service in question.

On December 14, 2001 at NCMC, following a conversation with someone at the information booth in the lobby to confirm that what had been the practice and procedure regarding service was still in effect, Mr. Geisweller proceeded to the hallway on the first floor off the lobby as aforesaid with the summons and complaint in this action and a subpoena for records in an unrelated matter in hand to effectuate service. He went to the Administrative Offices and there was no one there [direct testimony] and encounter- ed an individual whom he had a conversation with as to his purpose of service of process in this action who then advised him they were not authorized — go to the subpoena desk (Medical Records Department)[cross examination]. He did so and encountered Ms. Whitehurst and had a similar conversation as to service of process in this action. Leaving the immediate area she said she would be right back. She returned 2 minutes later and stated they told me to accept it and she took the summons and complaint in this action and the unrelated subpoena. Time — 1:20 PM. The witness does not know who the “they” was nor did he ask. He left NCMC and later completed the paperwork — his logbook and the affidavit of service.

Ms. Whitehurst has been a clerk in the NCMC Medical Records Department for 4-1/2 years. Her duties include answering phone and pulling/copying medical records. Further, like her co-employee clerks, she is authorized to and has accepted subpoenas for medical records. This witness was not in the courtroom during the Geisweller testimony and stated she had only seen him very briefly the day of the hearing and did not recognize him.[1]† She had no recall of the claimed acceptance by her of the summons and complaint in this action, doing so is not a part of her job duties, she has never accepted service of a summons and complaint and had no recall of any occasion of going to anyone to ask permission to do so.

Although there were some inconsistencies/discrepancies between Mr. Geisweller’s testimony on direct examination, cross-examination and the affidavit he submitted on the motion, I do not conclude, as urged by NCMC, that his testimony is unworthy of belief and should be rejected in toto.[2]† His testimony of the personal delivery of the summons and complaint to Ms. Whitehurst and his conversations with her was credible, is credited, and is confirmed by NCMC’s actual receipt of same.[3]† See, Arvanitis v. Bankers Trust Company, 286 AD2d 273.

The Court’s inquiry does not end with these factual findings as this case presents a classic Fashion Page issue (Fashion Page, Ltd. v. Zurich Insurance Co., 50 NY2d 265) — whether under the circumstances presented Ms. Whitehurst was or should be deemed to have been an authorized person [agent] to accept service of process on behalf of NCMC under CPLR 311 (subd 1). Clearly solely on the basis of her job title, duties and responsibilities, authority or lack thereof there is nothing before me to support the conclusion that Ms. Whitehurst was authorized to accept service of the summons and complaint. Fashion Page, Ltd. v. Zurich Insurance Co., supra.; Todaro v. Wales Chemical Co., 173 AD2d 696.[4]†

In its seminal holding in Fashion Page, addressing the legal sticky wicket of “managing agent” under 311 of the CPLR, the Court of Appeals held that where a process server in the course of effectuating service on a corporation makes the appropriate inquiries, exercises due diligence, and therefore acts with reasonable belief, reliance may be had upon corporate employees to identify the proper employee to accept service of a summons and complaint. In espousing its rationale behind this principle the Court made the following pivotal observations germane to this case:

Thus a corporation may assign the task of accepting process and may establish procedures for insuring that the papers are directed to those ultimately responsible for defending its interests. A process server may, of course, always serve the corporate personnel specifically identified in the statute. The corporation however cannot escape the consequences of establishing alternative procedures which it may prefer. In such a case the process server cannot be expected to know the corporation’s internal practices.

In evaluating whether service is to be sustained, the circumstances of the particular case must be weighed.

Nor is it always reasonable, under all circumstances, for the process server to rely on claims of authority made by the defendant’s employees. (Italics added.)

At bar NCMC had a specific practice and procedure in place for accepting service of the summons and complaint. Unlike his counterpart in Fashion Page, Mr. Geisweller was intimately familiar with NCMC’s “internal practices” and for expediency’s sake ignored them. As he testified either the window/office within the Administrative Offices where service of summonses and complaints was to be made was un-staffed, because of the lunch break, or there was someone there who disclaimed authorization and said to check with the Record Room. Further, even as he waited for Ms. Whitehurst’s return to the window, he testified he fully expected her to say she couldn’t take the summons and complaint — and would direct him back to the Administrative Offices! Reasonableness under these facts dictated he go back to those offices, which he unquestionably knew was the proper venue, and serve the papers there.

For the foregoing reasons, as matter of law, the delivery to Ms. Whitehurst was ineffective to acquire personal jurisdiction over NCMC.

Accordingly, NCMC’s motion to dismiss the action as against it for lack of jurisdiction is granted.

The Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.