Davenport v Lumibao 2026 NY Slip Op 30756(U) March 2, 2026 Supreme Court, New York County Docket Number: Index No. 805325/2023 Judge: John J. Kelley 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.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.8053252023.NEW_YORK.001.LBLX038_TO.html[03/11/2026 3:45:55 PM] FILED: NEW YORK COUNTY CLERK 03/03/2026 03:28 PM INDEX NO. 805325/2023 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/02/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 805325/2023 DIANE DAVENPORT as Guardian of the Person and Property of EVELYN LEDYARD, MOTION DATE 01/13/2026
Plaintiff, MOTION SEQ. NO. 002
-v- ALA-MAY LUMIBAO, M.D., ALLAN SANTIAGO, M.D., FORT TRYON REHABILITATION & HEALTH CARE FACILITY, LLC, doing business as FORT TRYON CENTER DECISION + ORDER ON FOR REHABILITATION AND NURSING, FORT TRYON CENTER, LLC, and INTEGRATED WOUND MOTION CARE MANAGEMENT NEW JERSEY, LLC, doing business as INTEGRATED WOUND CARE,
Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87 were read on this motion to/for DISMISSAL .
In this action to recover damages pursuant to Public Health Law § 2801-d for purported
violations of statutes and regulations governing nursing homes, and 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
Integrated Wound Care Management New Jersey, LLC, doing business as Integrated Wound
Care (IWCNJ), moves pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as
asserted against it on the ground that the action is time-barred as to it (CPLR 3211[a][5]), for
lack of in personam longarm jurisdiction over it (CPLR 3211[a][8]), and for lack of personal
jurisdiction over it based on the plaintiff’s alleged failure properly to serve process upon it (CPLR
3211[a][8]; see CPLR 306-b). The plaintiff opposes the motion. The motion is denied. In
connection with the request for relief pursuant to CPLR 3211(a)(5), the dismissal is without
prejudice to the submission of a properly noticed motion for summary judgment dismissing the
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amended complaint as against IWCNJ on the ground that the action is time-barred as to it. In
connection with so much of the request for relief pursuant to CPLR 3211(a)(8) as was premised
upon lack of in personam longarm jurisdiction, the dismissal is without prejudice to renewal after
the plaintiff and IWCNJ have engaged in expedited discovery on the issue of whether IWCNJ is
subject to personal jurisdiction in New York, which they are directed to do as further set forth
herein. The motion is otherwise denied on the merits.
In an order dated September 16, 2025, and entered September 17, 2025, this court
granted the plaintiff’s motion for leave to serve and file a supplemental summons and amended
complaint adding IWCNJ as a party defendant. IWCNJ served an answer to the amended
complaint on November 7, 2025. In its answer, IWCNJ raised, as affirmative defenses, that,
among other things, the plaintiff’s claims, “in whole or in part, are barred by virtue of the
expiration of the applicable statute of limitations” (First Affirmative Defense), that “[t]he Court
does not have personal jurisdiction over the answering defendant” (Third Affirmative Defense),
and “[p]laintiff failed to properly serve the Complaint pursuant to the CPLR, and as such this
Court lacks jurisdiction over the answering defendant” (Fourth Affirmative Defense). On
November 17, 2025, IWCNJ moved pursuant to CPLR 3211(a)(5) and 3211(a)(8) (see CPLR
2211) to dismiss the amended complaint insofar as asserted against it on those grounds.
CPLR 3211(e) provides, in relevant part, that:
“[a]t any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) of this rule is waived unless raised either by such motion or in the responsive pleading”
(emphasis added). In light of the provisions of CPLR 3211(e),
“[a] motion to dismiss the complaint based on a ground listed in CPLR 3211(a) . . . must be made before answering (see CPLR 3211[e]: Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:21). A motion for summary judgment, on the other hand, does not lie until after service of the responsive pleading (id.). Summary judgment is, therefore, a post answer device (id.). Any of the grounds on which a CPLR 3211 motion could have been 805325/2023 DIANE DAVENPORT AS GUARDIAN OF THE PERSON AND PROPERTY Page 2 of 15 OF EVELYN LEDYARD vs. LUMIBAO MD, ALA-MAY ET AL Motion No. 002
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made here . . . can he used as a basis for a motion for summary judgment afterwards as long as the particular objection, although not taken by a CPLR 3211 motion before service of the answer, has been included as a defense in the answer and thereby preserved (CPLR 3211[e]: Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3212:20). Having preserved the affirmative defense in their answer, defendants were not also entitled to serve a pre-answer motion to dismiss, which is a procedural irregularity. Defendants [are] required to move for summary judgment on the [CPLR 3211(a)] issue inasmuch as they had served their answer”
(Lusitano Enters., Inc. v Horton Bros., Inc., 2018 NY Slip Op 32011[U], *2-3, 2018 NY Misc
LEXIS 3587, *4 [Sup Ct, Suffolk County, Aug. 14, 2018]; see Castro v Fraser, 2022 NY Slip Op
30903[U], *5, 2022 NY Misc LEXIS 1368, *7 [Sup Ct, N.Y. County, Mar. 15, 2022] [Kelley, J.];
Higgins v Goyer, 2018 NY Slip Op 33520[U], *2, 2018 NY Misc LEXIS 9607, *3 [Sup Ct,
Rensselaer County, Nov. 1, 2018]; see also McLearn v Cowen & Co., 60 NY2d 686, 689
[1983]). As noted above, prior to making its motion on November 17, 2025, IWCNJ had served
an answer on November 7, 2025, and the court concludes that IWCNJ preserved the affirmative
defense of the statute of limitations by asserting it in its answer.
Consequently, to the extent that IWCNJ seeks relief on a ground enumerated in CPLR
3211(a)(5), such relief is unavailable pursuant to that statute at this juncture, but is available
only via a motion for summary judgment pursuant to CPLR 3212 (see Rich v Lefkovits, 56 NY2d
276, 282 [1982] [“we answer in the affirmative the question . . . concerning whether defendant
may move after answer for summary judgment on his jurisdictional defense”]). In Molina v
Mount Sinai Morningside Hosp. (2024 NY Slip Op 32724[U], 2024 NY Misc LEXIS 3607 [Sup
Ct, N.Y. County, Jul. 9, 2024] [Kelley, J.]), this court was presented with a situation virtually
identical to that presented by the motion in the instant case. In that case, four of the defendants
had answered the complaint, asserting the statute of limitations as an affirmative defense, but
thereafter made a post-answer motion pursuant to CPLR 3211(a)(5) to dismiss the complaint
insofar as asserted against them on that ground. This court explained that resort to that statute
was inappropriate because the movants already had served an answer, but that it would decline
to convert the motion to summary judgment motion by providing notice to the parties pursuant to 805325/2023 DIANE DAVENPORT AS GUARDIAN OF THE PERSON AND PROPERTY Page 3 of 15 OF EVELYN LEDYARD vs. LUMIBAO MD, ALA-MAY ET AL Motion No. 002
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CPLR 3211(c), and instead deem the motion to be one for summary judgment, since the parties
appeared to have charted a summary judgment course (see Seasons Hotels v Vinnik, 127
AD2d 310, 320 [1st Dept 1987]). The plaintiff appealed. On appeal, the Appellate Division,
First Department, reversed this court’s order, explaining that, even though “the issue of whether
decedent's medical records support plaintiff's contention that this matter was timely under the
continuous treatment doctrine or Lavern's Law involves questions of fact” (Molina v Mount Sinai
Morningside Hosp., 244 AD3d 489, 489-490 [1st Dept 2025]),
“Supreme Court erred by treating defendants' motion as one for summary judgment without employing the correct procedure as required under CPLR 3211(c). After determining that the Mt. Sinai defendants’ CPLR 3211(a)(5) motion to dismiss on statute of limitations grounds was served after their answer and thus untimely, the court converted the motion to one for summary judgment. However, the court never provided notice of its intention to convert, and it is undisputed that neither side requested that the matter be considered as one for summary judgment (see Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1st Dept 1987]).
“Contrary to the Mt. Sinai defendants' contention, the parties did not chart a summary judgment course. Instead, in opposition, plaintiff focused on the issue of defendant's CPLR 3211 motion to dismiss, solely relying on CPLR 3211(a)(5) case law, and argued, among other things, that the motion should be denied given that discovery from defendants was outstanding”
(id.) (emphasis added). Applying the strictures of that appellate determination as guidance, the
court concludes that the parties here did not chart a summary judgment course (see Bowman v
Andrews, 2025 NY Slip Op 34920[U], *3-4, 2025 NY Misc LEXIS 10487, *2-5 [Sup Ct, N.Y.
County, Dec. 16, 2025] [Kelley, J.]). In the exercise of its discretion under CPLR 3211(c) (see
1995 CAM LLC v West Side Advisors, LLC, 221 AD3d 420, 420 [1st Dept 2023], revd other
grounds _____NY3d____, 2025 NY Slip Op 05782 [Oct. 21, 2025]), the court declines to
provide notice to the parties that it intends to convert that branch of the motion which was
pursuant to CPLR 3211(a)(5) into a summary judgment motion. Rather, it denies that branch of
the motion as “untimely,” albeit without prejudice to IWCNJ’s submission of a properly noticed
motion for summary judgment, after all relevant discovery has been completed, dismissing the
amended complaint on the ground that the action is time-barred as to it. 805325/2023 DIANE DAVENPORT AS GUARDIAN OF THE PERSON AND PROPERTY Page 4 of 15 OF EVELYN LEDYARD vs. LUMIBAO MD, ALA-MAY ET AL Motion No. 002
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In connection with that branch of the motion premised upon the court’s lack of in
personam longarm jurisdiction over IWCNJ, however, the court initially notes that motions
pursuant to CPLR 3211(a)(8) are not subject to the particular limitations and strictures set forth
CPLR 3211(e) that apply to requests for relief pursuant to CPLR 3211(a)(1), (3), (4), (5) and (6),
specifically, that the invocation of those grounds for dismissal must be made either in a pre-
answer motion to dismiss the complaint or pursuant to a summary judgment motion made after
preserving the affirmative defense by raising it in an answer. Rather, the relevant provision of
CPLR 3211(e) recites that,
“[a]n objection based upon a ground specified in paragraph eight of nine of this rule is waived if a party moves on any of the grounds set forth in subdivision (a) of this rule without raising such objection or if, having made no objection under subdivision (a) of this rule, he or she does not raise such objection in the responsive pleading.”
Moreover, CPLR 3211(e) further provides that
“an objection that the summons and complaint, . . . 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.”
In the instant action, however, IWCNJ did indeed raise an objection based on the lack of in
personam longarm jurisdiction both in its answer and in the instant motion (cf. Addesso v
Shemtob, 70 NY2d 689, 690 [1987] [“The basis for the objection of lack of personal jurisdiction .
. . should have been made in the earlier CPLR 3211(a) motion to dismiss,” rather than pursuant
to later summary judgment motion]; Hickey v Hutton, 182 AD2d 801, 802 [2d Dept 1992]).
Additionally, it raised the objection based on improper service of process in its answer, and
moved to dismiss the amended complaint against it on that ground within 60 days after serving
the answer. Hence, there is no prohibition on IWCNJ’s submission of a post-answer CPLR
3211(a)(8) motion to dismiss the amended complaint against it for lack of in personam longarm
jurisdiction or improper services of process, as there is would be on a post-answer CPLR
3211(a)(5) motion based on the expiration of the applicable statute of limitations.
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Where, as here, a defendant moves to dismiss a complaint pursuant to CPLR 3211(a)(8)
for lack of personal jurisdiction, the plaintiff, in opposing the motion, bears the burden of coming
forward with sufficient evidence to prove jurisdiction (see Aybar v Aybar, 169 AD3d 137, 142 [2d
Dept 2019], affd 37 NY3d 274 [2021]). Nonetheless, “in opposing a motion to dismiss pursuant
to CPLR § 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is
necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only
set forth ‘a sufficient start, and show[ ] their position not to be frivolous’” (Shore Pharm.
Providers, Inc. v. Oakwood Care Ctr., Inc., 65 AD3d 623, 624 [2d Dept 2009], quoting Peterson
v Spartan Indus., 33 NY2d 463, 467 [1974]).
In support of its motion, IWCNJ submitted the affirmation of Mitchell Jakubovic, who
identified himself as the acting chief financial officer of both IWCNJ and its sister professional
corporation, Integrated Wound Care New York Medical, PLLC (IWCNY), asserting that he had
personal knowledge of the relationship between those two entities. He stated that IWCNY
provided third-party wound care services to the residents of the defendants Fort Tryon
Rehabilitation & Health Care Facility, LLC, doing business as Fort Tryon Center for
Rehabilitation and Nursing, and Fort Tryon Center, LLC (together the Fort Tryon defendants),
including patient consultation and evaluation for wound management, specifically providing
wound care visits and treatments, answering the Fort Tryon defendants’ staff questions
regarding wound care, recommending wound care treatment plans between visits, and
performing consultations with residents of the Fort Tyron defendants’ facilities the residents’
attending physicians. Jakubovic averred that all payments for that wound care services are
made through the individual patient's insurer, and that no compensation was ever exchanged
between the Fort Tryon defendants and IWCNJ, IWCNY, or any IWC entity.
Jakubovic stated that,
“[a]s part of the parties’ arrangement, it was agreed that in no event shall either party be liable for any damages arising out of or in connection with their
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agreement or the use of the services, whether such liability arises from any claim based upon contract, warranty, tort, strict liability or otherwise.”
According to Jakubovic, while providing wound care services at the Fort Tryon defendants’
facility, IWCNY rendered services to the plaintiff’s ward from January 27, 2021 until May 25,
2022, characterizing IWCNY’s role in this regard as one of “an independent contractor.” He
further asserted that IWCNY was neither supervised nor controlled by the Fort Tyron defendants
or any of its physicians or staff, but, instead, that all IWCNY wound care services “were
provided by a licensed physician,” presumably one employed by IWCNY.
As Jakubovic explained it, IWCNY is corporate entity separate from IWCNJ, that the two
entities are not affiliated with each other, and that IWCNJ did not own, operate, control or
manage IWCNY during the time that the latter performed consulting services for Fort Tryon. He
further asserted that IWCNJ did not provide any treatment to the plaintiff’s ward and did not
receive compensation either from the patient or the Fort Tryon defendants in connection with
the patient’s treatment. Jakubovic further asserted that “IWC New York,” which was the only
IWC entity that rendered treatment to the plaintiff’s ward, does not maintain an office at 100
Charles Ewing Boulevard, Ewing, New Jersey 08628, where IWCNJ allegedly maintains its
offices and that, in any event, Joe Cicoria, who was named in the relevant affidavit of service as
the recipient of the supplemental summons and amended complaint on behalf of IWCNJ, “is not
an authorized agent to receive service of process for IWC New York.” Jakubovic, however, did
not aver that IWCNJ’s offices were not located at that address, nor did he claim that Cicoria was
not authorized to accept service on behalf of IWCNJ.
“A foreign corporation is amenable to suit in New York courts under CPLR 301 if it has
engaged in such a continuous and systematic course of ‘doing business’ here that a finding of
its ‘presence’ in this jurisdiction is warranted” (Landoil Resources Corp. v Alexander &
Alexander Servs., Inc., 77 NY2d 28, 33 [1990]). Thus, where a non-domiciliary defendant does
not own property in New York, does not reside in New York, and do not “do business” in New
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York, New York courts would not have general, all-purpose jurisdiction over that defendant,
since it would not have sufficient contacts with or a sufficient presence in New York (see CPLR
301; Aybar v Aybar, 169 AD3d at 142-143; see also Daimler AG v Bauman, 571 US 117, 122,
127 [2014] [a court may assert jurisdiction over a foreign corporation to hear any and all claims
against it only when the corporation’s affiliations with the State in which suit is brought are so
constant and pervasive as to render it essentially at home in the forum State]; Rushaid v. Pictet
& Cie, 28 NY3d 316, 323 n 4 [2016]; Ingraham v Carroll, 90 NY2d 592, 597 [1997]; Landoil
Resources Corp. v Alexander & Alexander Servs., Inc., 77 NY2d at 33 [1990]; Banco
Ambrosiano, S.p.A. v Artoc Bank & Trust, Ltd., 62 NY2d 65, 71 [1984]).
Pursuant to CPLR 302(a)(1), a nondomiciliary defendant is subject to personal
jurisdiction in New York where it “transacts any business within the state or contracts anywhere
to supply goods or services in the state.” A defendant is considered to have transacted
business where it “projects [itself] into this state to engage in a sustained and substantial
transaction of business” or “seeks out and initiates contact with New York, solicits business in
New York, and establishes a continuing relationship” (Paterno v Laser Spine Inst., 24 NY3d
370, 377 [2014]; see D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d
292 [2017]). In order to invoke long arm jurisdiction under CPLR 302(a)(1), the plaintiff must
show that the defendant purposely availed itself of commercial amenities or facilities in New
York (see Licci ex rel. Licci v Lebanese Can. Bank, SAL, 20 NY3d 327, 339 [2012]).
“Purposeful activities” are volitional acts by which the non-domiciliary avails itself of the privilege
of conducting activities within the forum state, thus invoking the benefits and protections of its
laws (Paterno v Laser Spine Inst., 24 NY3d at 376). Moreover, “it is not necessarily who
initiated contact that is determinative, but rather, the nature and quality of the contacts and the
relationship established as a result” (Grimaldi v Guinn, 72 AD3d 37, 51 (2d Dept 2010]).
As the Court of Appeals has explained,
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“[i]t is not enough that a non-domiciliary defendant transact business in New York to confer long-arm jurisdiction. In addition, the plaintiff’s cause of action must have an ‘articulable nexus’ or ‘substantial relationship’ with the defendant's transaction of business here. At the very least, there must be ‘a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim’”
(D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d at 298-289, quoting
Licci ex rel. Licci v Lebanese Can. Bank, SAL, 20 NY3d at 339). In addition, even where the
non-domiciliary transacted business in New York, to satisfy due process concerns, “[t]he
constitutional touchstone remains whether the defendant purposefully established ‘minimum
contacts’ in the forum state” (Burger King v Rudzewciz, 471 US 462, 474 [1985], quoting
International Shoe Co. v Washington, 326 US 310, 316 [1945]; D&R Global Selections, S.L., 29
NY3d at 288-289; see also BNSF Ry. v Tyrell, 581 US 402 [2017]). Thus, where a defendant
“transacts any business within the state or contracts anywhere to supply goods or services in
the state” (CPLR 302[a][1]; see D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro,
29 NY3d 298; Paterno v Laser Spine Inst., 24 NY3d at 377 [2014]), and the plaintiff’s cause of
action against ‘[arises] from’ such a business transaction” (Best Van Lines, Inc. v Walker, 490
F3d 239, 246 [2d Cir 2007]; see Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 NY3d 65,
71 [2006]), a New York court may exercise “specific” personal jurisdiction over that defendant,
but only if due process factors are satisfied. More specifically, “[t]o determine the existence of
jurisdiction under section 302(a)(1), a court must decide (1) whether the defendant ‘transacts
any business’ in New York and, if so, (2) whether this cause of action ‘[arises] from’ such a
business transaction” (Best Van Lines, Inc. v Walker, 490 F3d at 246; see Deutsche Bank Sec.,
Inc. v. Montana Bd. of Invs., 7 NY3d at 71). In this respect, the Court of Appeals nonetheless
has explained that,
“‘despite the fact that section 302(a)(1) . . . and constitutional due process are not coextensive, and that personal jurisdiction permitted under the long-arm statute may theoretically be prohibited under due process analysis, we would expect such cases to be rare’”
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(Rushaid v Pictet & Cie, 28 NY3d at 331, quoting Licci ex rel. Licci v Lebanese Can. Bank, SAL,
732 F3d at 170).
It is well settled that there is a presumption of corporate separateness between parent
and subsidiary entities (see Meshel v Resorts Intl. of N.Y., Inc., 160 AD2d 211 [1st Dept 1990]).
As a general rule, a parent corporation is not liable for the acts of a subsidiary (see McCloud v
Bettcher Indus., Inc., 90 AD3d 1680, 1681 [4th Dept 2011]]). “[T]he existence of an agency
upon which a finding of jurisdiction may be predicated may not be inferred from the mere
existence of a parent-subsidiary relationship” (Insurance Co. of N. Am. v EMCOR Group, Inc., 9
AD3d 319, 320 [1st Dept 2004]; see Frummer v Hilton Hotels Intl., 19 NY2d 533, 538 [1967]).
Indeed, liability can never be predicated solely upon the fact that a parent corporation owns a
controlling interest in the shares of its subsidiary (see Billy v Consolidated Mach. Tool Corp., 51
NY2d 152, 163 [1980]; McCloud v Bettcher Indus., Inc., 90 AD3d at 1681; Lowendahl v
Baltimore & O.R.C., 247 App Div 144, 155 [1st Dept 1936], affd 272 NY 360 [1936]). Even
complete ownership of a subsidiary’s stock is insufficient, by itself, to pierce the corporate veil
(see Oxbow Calcining USA, Inc. v American Indus. Partners, 96 AD3d 646, 649 [1st Dept
2014]). For the purposes of tort liability, courts may only disregard the separate legal identities
of the parent and subsidiary corporation if the parent intervenes in the subsidiary’s management
so thoroughly as to ignore the subsidiary's paraphernalia of incorporation, directors, and officers
(see Billy v Consolidated Mach. Tool Corp., 51 NY2d 152 [1980]; Dempsey v Intercontinental
Hotel Corp., 126 AD2d 477, 478 [1st Dept 1987]). In other words, “’[a] parent company will not
be held liable for the torts of its subsidiary unless it can be shown that the parent exercises
complete dominion and control over the subsidiary’” (Broxmeyer v United Capital Corp., 79
AD3d 780, 784 [2d Dept 2010], quoting Serrano v New York Times Co., Inc., 19 AD3d 577, 578
[2d Dept 2005]). That same rule applies to the alleged vicariously liability of one corporation for
the acts of its sister corporation (see Mitchell v TAM Equities, Inc., 27 AD3d 703, 708 [2d Dept
2006]; Alexander & Alexander of N.Y. v Fritzen, 114 AD2d 814, 815 [1st Dept 1985] [“in terms of 805325/2023 DIANE DAVENPORT AS GUARDIAN OF THE PERSON AND PROPERTY Page 10 of 15 OF EVELYN LEDYARD vs. LUMIBAO MD, ALA-MAY ET AL Motion No. 002
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legal responsibility, parent, subsidiary or affiliated corporations are treated separately and
independently and one will not be held liable for the contractual obligations of the other, unless it
is shown that there was an exercise of complete dominion and control”]).
In opposition to IWCNJ’s motion, the plaintiff argued that IWCNJ and IWCNY were so
inextricably intertwined with each other, with Jakubovic serving as chief financial officer for both
of them, IWCNJ advertising the that “coverage area” in which it provides services included New
York, and both IWCNJ and IWCNY listing the same Teaneck, New Jersey, address as an office
address, that they each exercised dominion and control over each other.
A court may also exercise personal jurisdiction over any non-domiciliary, who commits a
tortious act within the state (see CPLR 302[a][2]). In this respect, the plaintiff also contended
that Fort Tryon’s medical chart itself included entries with the heading “Integrated Wound Care,”
that listed its address as 492-C Cedar Lane, Suite 514, Teaneck, New Jersey 07666, a
telephone number of 732-451-4318, which indicates a New Jersey exchange, and a fax number
of 888-974-0983. She thus suggested that IWCNJ itself committed a tortious act in New York
when its personnel treated her ward at the Fort Tryon defendants’ facilities.
The court rejects the plaintiff’s contention that it should completely disregard Jakubovic’s
affirmation because it was unsworn. Although Jakubovic submitted an affirmation rather than
an affidavit, CPLR 2106 was amended, effective January 1, 2024, to authorize the use of an
affirmation in lieu of an affidavit by “any person wherever made,” as long as the statement set
forth therein had been “affirmed by that person to be true under the penalties of perjury” (L
2023, ch 559) (emphasis added), more particularly, that a statement included in an affirmation
by an affirmant must be in “substantially the following form:
I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.”
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(see Matter of Sweet v Fonvil, 227 AD3d 849, 851 [2d Dept 2024]). At the end of his
affirmation, Jakubovic averred that “I understand that if anything in this Affirmation is untrue, I
am subject to punishment,” which the court concludes is in “substantially” the same form as the
statutory language.
Nonetheless, the plaintiff correctly argued that her burden in opposing this motion is very
low. “‘[T]o successfully oppose [a motion to dismiss for lack of personal jurisdiction], the plaintiff
need only make a prima facie showing that the defendant was subject to the personal
jurisdiction of the court’” (Sacco v Reel-O- Matic, Inc., 183 AD3d 567, 568 [2d Dept 2020],
quoting America/Intl. 1994 Venture v Mau, 146 AD3d 40, 51 [2d Dept 2016]; see Lercara
Provisions, Inc. v Boar's Head Provisions Co., Inc., _____AD3d_____, 2026 NY Slip Op 00884
[2d Dept, Feb. 18, 2026]; Desselle v Hills, 222 AD3d 1380, 1381 [4th Dept 2023]; Doller v
Prescott, 167 AD3d 1298, 1302 [3d Dept 2018]). In this respect, the plaintiff further correctly
contended that, when a court is considering the motion, “‘[t]he facts alleged in the complaint and
affidavits in opposition to such a motion to dismiss are deemed true and construed in the light
most favorable to the plaintiff, and all doubts are to be resolved in favor of the plaintiff’” (Lesavoy
v Brady, 242 AD3d 856, 858 [2d Dept 2025] [applying rule to CPLR 3211(a)(8) motion], quoting
Fanelli v Latman, 202 AD3d 758, 759 [2d Dept 2022], quoting, in turn, Nick v Schneider, 150
AD3d 1250, 1251 [2d Dept 2017]). The court concludes that, by submitting evidence that,
although the plaintiff did not make a prima facie showing that IWCNJ is subject to jurisdiction in
New York, she set forth a “sufficient start” by showing that her contention that New York has
jurisdiction over IWCNJ is not frivolous, inasmuch as (a) IWCNJ and IWCNY share at least one
officer and one office and, thus, may be so intertwined that they may be considered one entity
for the purposes of imposing tort liability, (b) the court might be able to assert specific in
personam jurisdiction over IWCNJ pursuant to the “transacting business” provisions of CPLR
302(a)(1) consonant with due process considerations since there is a factual question as to
whether it has permanent presence in New York, and (c) there are factual questions as to 805325/2023 DIANE DAVENPORT AS GUARDIAN OF THE PERSON AND PROPERTY Page 12 of 15 OF EVELYN LEDYARD vs. LUMIBAO MD, ALA-MAY ET AL Motion No. 002
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whether IWCNJ may have negligently rendered medical care to her ward in New York that
would subject it to specific in personam jurisdiction by virtue of committing a tortious act in the
state within the meaning of CPLR 302(a)(2), or by virtue of its dominion and control over IWCNY
at a time when IWCNY allegedly committed a tortious act in New York. Hence, although that
branch of IWCNJ’s motion seeking dismissal for lack of in personam longarm jurisdiction, the
court concludes that it should be denied, without prejudice to renewal after the parties engage in
expedited discovery on the issue of whether New York has in personam longarm jurisdiction.
With respect to IWCNJ’s contention that it was not properly served with process, that
request for relief must be denied because Jakubovic asserted in his affirmation that IWCNY did
not maintain its offices at the location where the plaintiff effectuated service of process, not that
IWCNJ, whose motion this is, did not maintain offices there. He further asserted that the
recipient of process was not authorized to accept service on behalf of IWCNY, not that he was
unauthorized to accept service of process on behalf IWCNJ. In other words, he adduced no
evidence that the location at which process was served, or the identity of the recipient of
process, was incorrect or improper, as those issues applied to IWCNJ. That request for relief
must be denied on that ground alone. In any event, the plaintiff’s process server attested in the
relevant affidavit of service that Cicoria identified himself as IWCNJ’s “Mgmt Rep./Authorized to
Accept Service for Integrated Wound Care Management New Jersey, LLC d/b/a Integrated
Wound Care,” and that “[t]he entity served was known to be the corporation described in the
papers. The title of the individual named above was known. I inquired whether the individual
was authorized to accept service, received an affirmative response, and served the papers
accordingly.” Where, as here, a plaintiff submits proof that a corporate employee has
represented to a process server that he or she was authorized to accept process on behalf of
the corporate defendant, service of process is deemed properly to have been made upon that
corporation pursuant to CPLR 311 (see Cellino & Barnes, P.C. v Martin, Lister & Alvarez, PLLC,
117 AD3d 1459, 1460 [4th Dept 2014]; see also Fashion Page v Zurich Ins. Co., 50 NY2d 265, 805325/2023 DIANE DAVENPORT AS GUARDIAN OF THE PERSON AND PROPERTY Page 13 of 15 OF EVELYN LEDYARD vs. LUMIBAO MD, ALA-MAY ET AL Motion No. 002
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273 [1980] [process server's reasonable belief of recipient’s authority is the crucial factor];
Passeri v Tomlins, 141 AD3d 816, 818, n [3d Dept 2016]; Arvanitis v Bankers Trust Co., 286
AD2d 273, 273 [1st Dept 2001]).
In light of the foregoing, it is,
ORDERED that, in connection with the request of the defendant Integrated Wound Care
Management New Jersey, LLC, doing business as Integrated Wound Care, for relief pursuant to
CPLR 3211(a)(5), the motion is denied, albeit without prejudice to the submission of a properly
noticed motion for summary judgment dismissing the amended complaint as against that
defendant on the ground that the action is time-barred as to it after the completion of all
discovery, and, in connection with so much of that defendant’s request for relief pursuant to
CPLR 3211(a)(8) as was premised on New York’s alleged lack of in personam longarm
jurisdiction over it, the motion is denied without prejudice to renewal after the plaintiff and that
defendant have engaged in expedited discovery on the issue of whether that defendant is
subject to in personam longarm jurisdiction in New York, as set forth below, and the motion is
otherwise denied on the merits; and it is further,
ORDERED that, on or before April 2, 2026, the plaintiff shall, if she be so advised, take
the limited deposition of Mitchell Jakubovic, or any other person employed by or affiliated with
the defendant Integrated Wound Care Management New Jersey, LLC, doing business as
Integrated Wound Care, who has knowledge of that defendant’s activities in New York and that
defendant’s corporate relationship with the defendant Integrated Wound Care Management
New York, LLC, but she shall be entitled to conduct no more than three depositions in
connection with those issues, or, in the alternative, the plaintiff may serve interrogatories, limited
in number to 25, including subparts, which shall be answered within 30 days after service
thereof (see 22 NYCRR 202.20), but she shall not be entitled to avail herself of both depositions
and interrogatories on these issues; and it is further,
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ORDERED that, no later than 30 days after the completion of the depositions described
above, or the plaintiff’s receipt of a response to interrogatories, she may serve demands for the
production of documents related to the issue of the business activities of the defendant
Integrated Wound Care Management New Jersey, LLC, doing business as Integrated Wound
Care, in New York, and that defendant’s corporate relationship with the defendant Integrated
Wound Care Management New York, LLC; and it is further,
ORDERED that the automatic stay of proceedings imposed by operation of law is
vacated and dissolved (see CPLR 3214[b]); and it is further,
ORDERED that, on or before April 30, 2026, the parties shall re-submit a proposed
status conference order to the court’s Part Clerk, and the proceedings in this action shall not be
stayed by any motion for renewal of this motion that may be made by the defendant Integrated
Wound Care Management New Jersey, LLC, doing business as Integrated Wound Care, or by
any summary judgment motion made by that defendant that is premised upon the statute of
limitations.
This constitutes the Decision and Order of the court.
3/2/2026 $SIG$ DATE JOHN J. KELLEY, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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