The opinion
Hamidu v Sands
2026 NY Slip Op 31016(U)
March 18, 2026
Supreme Court, New York County
Docket Number: Index No. 805189/2025
Judge: John J. Kelley
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.8051892025.NEW_YORK.001.LBLX038_TO.html[03/24/2026 3:45:50 PM]
INDEX NO. 805189/2025
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/18/2026
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JOHN J. KELLEY PART 56M
Justice
---------------------------------------------------------------------------------X INDEX NO. 805189/2025
AMINA HAMIDU,
MOTION DATE 12/16/2025
Plaintiff,
MOTION SEQ. NO. 001
-v-
ANDREW K. SANDS, M.D., KYLE WALKER, M.D.,
STEVE POURNARAS, M.D., and NEW YORK- DECISION + ORDER ON
PRESBYTERIAN/LOWER MANHATTAN HOSPITAL, MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28,
29, 30, 31, 32, 33, 34, 35, 36, 37, 39
DISMISS/X MOTION TO EXTEND TIME TO SERVE
were read on this motion to/for PROCESS .
In this action to recover damages for medical malpractice based on alleged departures
from good and accepted practice, common-law negligence, and negligent hiring, training,
supervision, and retention of healthcare personnel, the defendant Steve Pournaras, M.D.,
moves pursuant to CPLR 306-b and 3211(a)(8) to dismiss the complaint insofar as asserted
against him for lack of personal jurisdiction, premised upon the plaintiff’s failure timely and
properly to serve him with a copy of the summons and complaint. The plaintiff opposes the
motion, and cross-moves pursuant to CPLR 306-b, 2001, and 2004 to extend her time to serve
Pournaras with a copy of the summons and complaint. Pournaras opposes the cross motion.
Pournaras’s motion is denied, the plaintiff’s cross motion is granted, and the plaintiff shall have
until June 30, 2026 within which to serve Pournaras with a copy of the summons and complaint.
The gravamen of this action is that, on January 7, 2023, the defendants negligently
performed a right hip open reduction procedure upon the plaintiff, with internal fixation
employing a femoral nail system, and that, as a consequence, the plaintiff sustained a fractured
bone. The plaintiff commenced this action on June 30, 2025 by filing a summons and
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complaint. Pursuant to CPLR 306-b, she had 120 days from that date to serve process upon
Pournaras, or until October 28, 2025 (see General Construction Law § 20).
In an August 5, 2025 affidavit of service, the plaintiff’s process server averred that
“On 8/5/2025 at 10:00:49 AM, deponent served the within ATTORNEY'S
VERIFICATION, SUMMONS AND VERIFIED COMPLAINT STEVE
POURNARAS, M.D. at 3998 Fair Ridge Drive, Suite 100, Fairfax, VA 22033 in
the manner indicated below:
“served an AUTHORIZED entity by delivering a true copy of the ATTORNEY'S
VERIFICATION, SUMMONS AND VERIFIED COMPLAINT to: Melanie Ortiz as
Front Desk Associate at the address of: 3998 Fair Ridge Drive, Suite 100,
Fairfax, VA 22033, who stated they are authorized to accept service for STEVE
POURNARAS, M.D., and informed said person of the contents therein, in
compliance with state statutes.
“Comments:
Copy mailed to subject 08/05/2025 first class USPS.”
The plaintiff filed the affidavit of service on August 19, 2025. Pournaras served an answer to
the complaint on September 3, 2025, which set forth the affirmative defense that the court
lacked personal jurisdiction over him. Pournaras made the instant motion on October 31, 2025,
and, thus, “within 60 days after serving the pleading,” as required by CPLR 3211(e).
In support of his motion, Pournaras submitted his own affirmation, in which he averred
that, in connection with the Fairfax, Virginia, address at which the plaintiff’s process server
attempted to serve him with the summons and complaint, he “never resided, been employed by
any entity located at that address, nor have I ever conducted business at that address at any
point up to and including August of 2025.” He further asserted that he has never been licensed
to practice medicine in the Commonwealth of Virginia. In addition, Pournaras stated that:
“I never personally received, nor was I ever personally served with any Summons
and Complaint addressed to Stephen Pournaras, M.D. or Steve Pournaras, M.D.
in this matter, in my hand.
“I never personally received the Summons and Complaint addressed to Stephen
Pournaras, M.D. or Steve Pournaras, M.D in this matter, via the United States
Postal Service or any other parcel delivery service.
“I never received the Summons and Complaint addressed to Stephen Pournaras,
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M.D. or Steve Pournaras, M.D at my home, via mail or any other manner of
service at my home address.
“I have not authorized any other individual to accept service of process of any
legal documentation on my behalf.”
In opposition to Pournaras’s motion, the plaintiff submitted the affidavit of process server
Loai F. Sarsour, who asserted that, on July 9, 2025, he
“attempted to make personal service of a true copy of the ATTORNEY’S
VERIFICATION, SUMMONS AND VERIFIED COMPLAINT in the above entitled
action upon STEVE POURNARAS, M.D. the DEFENDANT at 585
SCHENECTADY AVENUE BROOKLYN NY 11203 and was unable to do so.
DEPONENT ATTEMPTED TO SERVE THE RECIPIENT AT 585
SCHENECTADY AVENUE, BROOKLYN, NY, AND SPOKE TO AMINA WARD,
WHO ADVISED THE RECIPIENT NO LONGER WORKS THERE.”
The plaintiff also submitted a second affidavit from Sarsour, who attested that, on July 16, 2025
at 11:57 a.m., and again on July 19, 2025 at 12:49 p.m., he
“attempted to make personal service of a true copy of the ATTORNEY'S
VERIFICATION, SUMMONS AND VERIFIED COMPLAINT in the above entitled
action upon STEVE POURNARAS, M.D. the DEFENDANT at 31 WOODRUFF
AVE, APT 1A BROOKLYN NY 11226 and was unable to do so.
“DEPONENT ATTEMPTED TO SERVE THE RECIPIENT AT 31 WOODRUFF
AVE, APT 1A, BROOKLYN, NY 11226 AND SPOKE TO THE DOORMAN, WHO
CONFIRMED THE APARTMENT IS VACANT.”
In addition, the plaintiff submitted the affirmation of Ginelle Hinajosa, an account manager at a
company known as Lexitas, which undertakes computer searches referable to a person’s home
address and place of employment, who attested that, on July 14, 2025, Lexitas performed a skip
trace seeking to locate Pournaras, which revealed only that his business address continued to
be listed as 585 Schenectady Avenue, Brooklyn, New York.
CPLR 308 requires that service of process upon a natural person must be effectuated
either by personally delivering the summons to that person (CPLR 308[1]), by personally
delivering the summons to a person of suitable age and discretion at that defendant’s actual
place of business, dwelling place, or usual place of abode and mailing the summons to the
defendant’s last known residence or actual place of business (CPLR 308[2]), or, after diligent
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attempts unsuccessfully have been made to serve the defendant by one of those two methods,
by affixing the summons to the door of that defendant’s actual place of business, dwelling place,
or usual place of abode and mailing the summons to the defendant’s last known residence or
actual place of business (CPLR 308[4]). CPLR 3211(a)(8) provides that “[a] party may move for
judgment dismissing one or more causes of action asserted against him on the ground that . . .
the court has not jurisdiction of the person of the defendant.” “‘It is axiomatic that the failure to
serve process in an action leaves the court without personal jurisdiction over the defendant’”
(Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889 [2d Dept 2009], quoting McMullen v Arnone,
79 AD2d 496, 499 [2d Dept 1981]; see Mortgage Elec. Reg. Sys., Inc. v Congregation Shoneh
Halochos, 189 AD3d 820, 823 [2d Dept 2020]).
More particularly, CPLR 308(2) permits delivery of the summons
“within the state to a person of suitable age and discretion at the actual place of
business, dwelling place or usual place of abode of the person to be served and
by either mailing the summons to the person to be served at his or her last
known residence or by mailing the summons by first class mail to the person to
be served at his or her actual place of business in an envelope bearing the
legend ‘personal and confidential’ and not indicating on the outside thereof, by
return address or otherwise, that the communication is from an attorney or
concerns an action against the person to be served, such delivery and mailing to
be effected within twenty days of each other; proof of such service shall be filed
with the clerk of the court designated in the summons within twenty days of either
such delivery or mailing, whichever is effected later; service shall be complete
ten days after such filing; proof of service shall identify such person of suitable
age and discretion and state the date, time and place of service, except in
matrimonial actions where service hereunder may be made pursuant to an order
made in accordance with the provisions of subdivision a of section two hundred
thirty-two of the domestic relations law”
“Personal jurisdiction is not acquired absent compliance with both the delivery and mailing
requirements of the statute” (Everbank v Kelly, 203 AD3d 138, 143 [2d Dept 2022] [emphasis
added]). CPLR 308(4) provides that
“where service under paragraphs one and two cannot be made with due
diligence, by affixing the summons to the door of either the actual place of
business, dwelling place or usual place of abode within the state of the person to
be served and by either mailing the summons to such person at his or her last
known residence or by mailing the summons by first class mail to the person to
be served at his or her actual place of business in an envelope bearing the
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legend ‘personal and confidential’ and not indicating on the outside thereof, by
return address or otherwise, that the communication is from an attorney or
concerns an action against the person to be served, such affixing and mailing to
be effected within twenty days of each other; proof of such service shall be filed
with the clerk of the court designated in the summons within twenty days of either
such affixing or mailing, whichever is effected later; service shall be complete ten
days after such filing, except in matrimonial actions where service hereunder
may be made pursuant to an order made in accordance with the provisions of
subdivision a of section two hundred thirty-two of the domestic relations law.”
As with CPLR 308(2), employment of the affix and mail method of service “requires both affixing
and mailing” (Ventura v City of New York, 2025 NY Slip Op 33432[U], *3, 2025 NY Misc LEXIS
7558, *6 [Sup Ct, N.Y. County, Sep. 12, 2025] [emphasis added]).
Pournaras established that he was not properly served with process within 120 days
after the commencement of the action, as required by CPLR 306-b. If Sarsour’s affirmations are
correct, the court concludes that plaintiff has not shown the necessary “due diligence” in
effecting service by personal delivery (CPLR 308[1]) or substituted service (CPLR 308[2]), as a
total of three attempts at service at one former business address and one putative former
residence address in New York, during working hours, is insufficient to establish the due
diligence necessary to show good cause (see State Higher Educ. Servs. Corp. v Cacia, 235
AD2d 986, 987 [3d Dept 1997]; McGreevy v Simon, 220 AD2d 713, 713-714 [2d Dept 1995];
see also Hennessey v DiCarlo, 21 AD3d 505, 506 [2d Dept 2005]; Toyota Motor Credit Corp. v
Jackson, 2023 NY Misc LEXIS 36579, *4 [Sup Ct, Westchester County, Nov. 29, 2023]), even if
she also attempted service at a Virginia address with which Pournaras has and had no known
connection, along with a cursory skip trace.
Although CPLR 306-b provides that “[i]f service is not made upon a defendant within the
time provided in this section, the court, upon motion, shall dismiss the action without prejudice
as to that defendant,” it alternatively authorizes the court, “upon good cause shown or in the
interest of justice,” to “extend the time for service.” The plaintiff, by her cross motion, seeks to
extend the time for service. As the Court of Appeals explained in Leader v Maroney (97 NY2d
95, 105-106 [2001]),
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“the legislative history is unequivocal that the inspiration for the new CPLR 306-b
provision was its Federal counterpart. The revision was intended to offer New
York courts the same type of flexibility enjoyed by Federal courts under rule 4(m)
of the Federal Rules of Civil Procedure. Rule 4(m) similarly provides two
alternative grounds for a plaintiff seeking an extension of time to serve process.
The rule explicitly mandates that ‘if the plaintiff shows good cause for the failure,
the court shall extend the time for service] (Fed Rules Civ Pro, rule 4[m]). The
rule also authorizes a second, unspecified discretionary basis for extension ‘even
if there is no good cause shown’ (1993 Advisory Comm Note, Fed Rules Civ Pro,
rule 4[m]; see, Boley v Kaymark, 123 F3d 756, 758 [3d Cir], cert denied 522 US
1109).
“The interest of justice standard requires a careful judicial analysis of the factual
setting of the case and a balancing of the competing interests presented by the
parties. Unlike an extension request premised on good cause, a plaintiff need
not establish reasonably diligent efforts at service as a threshold matter.
However, the court may consider diligence, or lack thereof, along with any other
relevant factor in making its determination, 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 plaintiff's request for the extension of time, and
prejudice to defendant. We also agree with the Appellate Division majorities that
Federal case law analysis of rule 4(m) of the Federal Rules of Civil Procedure
provides a useful template in discussing some of the relevant factors for an
interest of justice determination (see, e.g., AIG Managed Mkt. Neutral Fund v
Askin Capital Mgt., 197 FRD 104, 109 [SD NY]; see also, State of New York v
Sella, 185 Misc 2d 549, 554 [Albany County Sup Ct] [compiling Federal factors]).
“The statute empowers a court faced with the dismissal of a viable claim to
consider any factor relevant to the exercise of its discretion. No one factor is
determinative--the calculus of the court's decision is dependent on the competing
interests of the litigants and a clearly expressed desire by the Legislature that the
interests of justice be served.”
(some citations and internal quotation marks omitted).
Inasmuch as the plaintiff cannot show that she employed due diligence in attempting to
serve Pournaras in a proper manner, she cannot show good cause for the requested extension
of time. Nonetheless, although this action does not qualify for an extension under the “good
cause” exception (see Mead v Singleman, 24 AD3d 1142, 1144 [3d Dept 2005]), the court
concludes that it qualifies under the “interest of justice” category (see Henneberry v Borstein, 91
AD3d 493, 495-496 [1st Dept 2012]).
“In deciding such a motion, the express language of CPLR 306-b gives the court
two options: dismiss the action without prejudice; or extend the time for service in
the existing action. . . . In these circumstances, the court’s options [are] limited to
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either dismissing the action outright, or extending the time for plaintiff to properly
effect service”
(id. at 495 [emphasis added]; see Sottile v Islandia Home for Adults, 278 AD2d 482, 484 [2d
Dept 2000] [“The statute gives a court the option of extending the time to serve instead of
dismissing the action”] [emphasis in original]). A court is only precluded from entertaining a
request to extend the time for service pursuant to CPLR 306-b where the action has been
dismissed by virtue of the entry of a judgment of dismissal (see State of N.Y. Mortgage Agency
v Braun, 182 AD3d 63, 70 [2d Dept 2020]), which has not occurred here.
It is undisputed that the plaintiff’s process server made some attempts to serve
Pournaras within the statutory 120-day period. The plaintiff made her cross motion on
December 15, 2025, only 10 weeks after Pournaras served his answer, which asserted the
affirmative defense of lack of personal jurisdiction. Thus, it cannot be said that the plaintiff
waited so long to seek the extension of time as to prejudice Pournaras or any other defendant
(cf. Nationstar Mtge., LLC v McCallum, 191 AD3d 480, 480-481 [1st Dept 2021] [plaintiff waited
nearly five years after defendant put plaintiff on notice that service was purportedly improper,
nine years after the action was commenced, and five months after the court determined that a
traverse hearing was warranted, before moving for an extension of time to effectuate service of
process]). Nor can Pournaras establish any prejudice if the plaintiff were granted an extension
of time within which to serve him with process, since he obtained notice of the commencement
of the action against him in sufficient time to permit him to serve an answer only two months
after the action was commenced, and almost two months before the 120-day period of CPLR
306-b had lapsed.
Accordingly, it is,
ORDERED that the motion of the defendant Steve Pournaras, M.D., to dismiss the
complaint insofar as asserted against him, based on improper service of process, is denied; and
it is further,
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ORDERED that the plaintiff’s cross motion for leave to extend the time within which to
effect service of process upon the defendant Steve Pournaras, M.D., is granted, and the plaintiff
shall have until June 30, 2026 to serve process upon him; and it is further,
ORDERED that, on or before April 3, 2026, the attorneys for the defendant Steve
Pournaras, M.D., shall provide the attorney for the plaintiff with the location of that defendant’s
actual place of business, dwelling place, and usual place of abode.
This constitutes the Decision and Order of the court.
3/18/2026 $SIG$
DATE JOHN J. KELLEY, J.S.C.
MOTION: CASE DISPOSED X NON-FINAL DISPOSITION
□ □
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
REFERENCE
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT
CROSS MOTION: CASE DISPOSED X NON-FINAL DISPOSITION
□ □
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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