July 2, 2021

Daily Med. Equip. Distrib. Ctr., Inc. v American Ind. Ins. Co. (2021 NY Slip Op 50639(U))

https://www.beynensonlaw.com/case-law/daily-med-equip-distrib-ctr-inc-v-american-ind-ins-co-2021-ny-slip-op50639u/

Court: Appellate Term, Second Department
Decided: July 2, 2021
Citation: 2021 NY Slip Op 50639(U)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Jurisdiction and service Defaults and vacatur

Cite as

Daily Med. Equip. Distrib. Ctr., Inc. v American Ind. Ins. Co., 2021 NY Slip Op 50639(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's default judgment motion failed because it did not establish personal jurisdiction over the insurer. The summons and complaint in this assigned no-fault action were sent by certified mail, return receipt requested, under CPLR 312-a. Service under that provision is complete when the signed acknowledgment of receipt is mailed or delivered to the plaintiff, and that acknowledgment constitutes proof of service. The provider submitted no acknowledgment and did not demonstrate that service was otherwise completed within the 120 days required by CCA 411. Applying CPLR 312-a (b), the Appellate Term, Second Department, reversed the order granting the provider's motion and denied it.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v American Ind. Ins. Co. (2021 NY Slip Op 50639(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Daily Medical Equipment Distribution Center, Inc., as Assignee of Balderrna, David, Respondent,
against
American Independent Ins. Co., Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered January 8, 2019. The order granted plaintiff’s motion for the entry of a default judgment.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion for the entry of a default judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for the entry of a default judgment.

The summons and complaint in this action were served by certified mail, return receipt requested, pursuant to CPLR 312-a. “Under CPLR 312-a, service is complete on the date the signed acknowledgment of receipt is mailed or delivered to the plaintiff. The signed acknowledgment of receipt constitutes proof of service” (New York Med. Rehab., P.C. v Travelers Ins. Co., 40 Misc 3d 76, 79 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [citation omitted]). Plaintiff’s papers did not contain an acknowledgment of service as required by CPLR 312-a, and plaintiff did not demonstrate that service was otherwise completed within 120 days of the filing of the summons and complaint in 2015 (see CCA 411). As plaintiff failed to establish that it had acquired personal jurisdiction over defendant (see CPLR 312-a [b]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Great Health Care Chiropractic, [*2]P.C. v State Farm Mut. Auto. Ins. Co., 67 Misc 3d 142[A], 2020 NY Slip Op 50735[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), plaintiff’s motion should have been denied.

Accordingly, the order is reversed and plaintiff’s motion for the entry of a default judgment is denied.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021

Cited in this decision

A label shows how this decision treated the case it cites.

New York Med. Rehab., P.C. v Travelers Ins. Co. (2013 NY Slip Op 23218) FollowedThe provider's action was time-barred because mailing the summons without a signed acknowledgment did not commence it.
Great Health Care Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 50735(U)) FollowedThe provider failed to acquire personal jurisdiction because the record showed no signed acknowledgment of service by mail.

Similar decisions

Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51897(U))A declaratory judgment denying a provider's accident-related no-fault entitlement has preclusive effect even if entered on default.
Maiga Prods. Corp. v American Ind. Ins. Co. (2021 NY Slip Op 50638(U))The provider's motion for entry of a default judgment in its action for assigned no-fault benefits was denied on appeal.
Daily Med. Equip. Distrib. Ctr., Inc. v Interboro Ins. Co. (2017 NY Slip Op 50958(U))The provider's action was premature because requested verification remained outstanding when suit commenced.
Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2020 NY Slip Op 51118(U))The provider failed to obtain personal jurisdiction over the insurers because it did not establish completed mailed service or timely alternative service.
Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51410(U))Neither party established entitlement to summary judgment because its proof concerning the denials was insufficient.