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03/14/94 DR. STANLEY BREZINSKI v. DR. VIJAY VOHRA

March 14, 1994

DR. STANLEY BREZINSKI, PLAINTIFF-APPELLANT,
v.
DR. VIJAY VOHRA, ET AL., DEFENDANTS, AND DR. RALPH OTTO, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLARD J. LASSERS, JUDGE PRESIDING.

Released for Publication April 19, 1994.

O'connor, Campbell, Buckley

The opinion of the court was delivered by: O'connor

Justice O'Connor delivered the opinion of the court:

In this appeal, we are asked to review the propriety of the circuit court's dismissal of a medical malpractice action pursuant to Supreme Court Rule 103(b). (134 Ill. 2d R.103(b).) We vacate the order and remand the case to the circuit court for further proceedings.

On April 24, 1990, plaintiff, Dr. Stanley Brezinski, filed a medical malpractice action against several defendants, including Dr. RalphOtto, the only defendant involved in this appeal. The complaint alleged negligence on the part of all defendants in their treatment of plaintiff's arm on April 25, 1988.

On the same day that plaintiff filed his complaint, he also had the sheriff issue a summons as to all defendants. The sheriff's return of service, dated April 26, 1990, indicated that service was attempted at Dr. Otto's office in Evanston, but that he was "not served." The return also bears the notation "no regular hours." On June 20, 1990, plaintiff issued an alias summons as to all the defendants who were unserved, including Dr. Otto. Again, the sheriff attempted service at Dr. Otto's Evanston office, and, again, Dr. Otto was "not served." The sheriff's return indicates that Dr. Otto "does not have office hours -- by appointment only."

On February 15, 1991, another alias summons was issued as to the two defendants still not served, including Dr. Otto. The sheriff's return indicates that service was attempted at Dr. Otto's Evanston office during the period between February 22 and March 7, 1991 and that Dr. Otto "was rarely in his office -- no schedule."

Plaintiff took no further action in attempting to serve Dr. Otto until an alias summons was issued on February 14, 1992. This final alias summons listed both Dr. Otto's Evanston office and his residence in Wilmette as the addresses to be served. Dr. Otto was served at his home on February 23, 1992.

Dr. Otto filed a motion to dismiss plaintiff's claims against him, arguing that plaintiff failed to exercise reasonable diligence in serving him as is required by Supreme Court Rule 103(b). (134 Ill. 2d R.103(b).) Attached to the motion was an affidavit in which Dr. Otto swore that he had maintained an office at the Evanston address listed on the summons. He also swore that he had lived in Winnetka until September 1991. This address was listed in the north suburban telephone directory. In November 1991, Dr. Otto moved to the Wilmette address where he was ultimately served. Dr. Otto stated that his new address was available through "directory assistance" and was to be published in the next telephone directory.

Plaintiff's response to the motion included the affidavit of his attorney, William T. Regas. Regas swore that during the period between February 15, 1990 and August 1991, his associate, Steven Hamill, had handled plaintiff's case. According to Regas, Hamill left the office in August 1991 and was not replaced until February 5, 1992. During this period, Regas was "shorthanded."

Following a hearing on the motion, the trial Judge dismissed the action as to Dr. Otto, finding that the plaintiff had failed to exercise due diligence in serving Dr. Otto.

Plaintiff contends that the circuit court improperly granted Dr. Otto's motion to dismiss. Supreme Court Rule 103(b) provides:

"(b) Dismissal for lack of diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case, the ...


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