Dyckman Med. Diagnostic/Treatment, P.C. v Granite State Ins. Co. (2014 NY Slip Op 51026(U))

Decided on July 1, 2014

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered March 5, 2011. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for services that it had allegedly provided to its assignor from October 19, 2000 through April 10, 2001. Upon receiving, on September 26, 2008, a document from plaintiff entitled amended complaint, bearing the caption “Dyckman Medical Diag. Treatment, P.C. A/A/O Juana Hernandez against Granite State Insurance Company” and index number 062375/03, defendant served its answer along with discovery demands. Thereafter, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that the six-year statute of limitations had expired prior to the commencement of the action. By order entered March 5, 2011, the Civil Court, among other things, denied this branch of defendant’s motion, determining that the action had been timely commenced. Defendant appeals from this portion of the order.

A defendant seeking summary judgment dismissing a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action had expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). Here, in support of the branch of its motion seeking summary judgment, defendant annexed an affidavit by a litigation specialist employed by a company that administers claims for it, which company is located in Albany, New York, who merely stated, based on a review of defendant’s records, that defendant had never received a summons and complaint in the instant action prior to September 26, 2008. However, in opposition to the motion, plaintiff proffered a copy of an affidavit of service of the summons and complaint in this action, which indicated that defendant had been served with the summons and complaint on March 25, 2003 at a New York City office. At that time, an action in the Civil Court was commenced by service of the summons (CCA former 400), and service was deemed complete immediately upon personal delivery to the defendant within the City of New York (CCA former 410). The record contains a copy of the summons and complaint, bearing index number 62375, as well as a copy of the affidavit of service, which were both filed with the Civil Court on April 7, 2003. As an affidavit of a process server constitutes prima facie evidence of proper service, defendant’s mere conclusory denial of receipt of that summons and complaint, made by an employee of a company other than defendant and not by someone employed at the New York City office where service was effectuated, was insufficient to rebut plaintiff’s prima facie proof of proper service (see Countrywide Home Loans Servicing, LP v Albert, 78 AD3d [*2]983 [2010]). As a result, defendant did not meet its burden of establishing that the six-year statute of limitations applicable here (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]) had expired prior to the commencement of the action.

Defendant’s claim that this action had, in fact, been previously dismissed is not substantiated by the record on appeal. It should be noted that defendant’s submission of an answer in 2008 and its service of discovery demands acted as a waiver of any right it may have had to dismissal, pursuant to CPLR 3215 (c), of the 2003 complaint, to which complaint defendant allegedly had never previously served an answer (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Gonzalez v Gonzalez, 240 AD2d 630 [1997]; Sutter v Rosenbaum, 166 AD2d 644 [1990]; Myers v Slutsky, 139 AD2d 709 [1988]; Avir Surgical Supplies, Inc. v Windsor Group Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51452[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur.