June 12, 2020

Great Health Care Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 50735(U))

https://www.beynensonlaw.com/case-law/great-health-care-chiropractic-p-c-v-state-farm-mut-auto-ins-co-2020ny-slip-op-50735u/

Court: Appellate Term, Second Department
Decided: June 12, 2020
Citation: 2020 NY Slip Op 50735(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Jurisdiction and service Defaults and vacatur

Cite as

Great Health Care Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2020 NY Slip Op 50735(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

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

The provider failed to acquire personal jurisdiction because the record showed no signed acknowledgment of service by mail. The provider obtained a default judgment after alleging service under CPLR 312-a, but its papers contained no acknowledgment of receipt. The insurer cross-moved, in effect, for summary judgment based on failure to serve within 120 days under CCA 411. Proper service was required for a default judgment under CPLR 3215 (f), and the missing acknowledgment defeated jurisdiction under CPLR 312-a. The Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's default motion, granted the insurer's cross motion, and remitted for entry of judgment dismissing the complaint without prejudice.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 50735(U))

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

Great Health Care Chiropractic, P.C., as Assignee of Overa, Lora, Respondent,
against
State Farm Mutual Automobile Ins. Co., Appellant.

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered September 21, 2018. The judgment, entered pursuant to an order of that court entered August 13, 2018 granting plaintiff’s motion for the entry of a default judgment and denying defendant’s cross motion, for, in effect, summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,190.34.

ORDERED that, on the court’s own motion, the notice of appeal from the order dated August 13, 2018 is deemed a premature notice of appeal from the judgment entered September 21, 2018 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order entered August 13, 2018 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion for, in effect, summary judgment dismissing the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint without prejudice.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. In support of plaintiff’s motion for a default judgment, its counsel stated that defendant’s time to answer had expired. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant cross-moved for, in effect, summary judgment dismissing the complaint on the ground that plaintiff had failed to serve a summons and complaint within 120 days of the commencement of the action (see CCA 411). By order entered August 13, 2018, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. A judgment was subsequently entered on September 21, 2018 awarding plaintiff the principal sum of $2,190.34. We deem [*2]defendant’s notice of appeal from the order to be a premature notice of appeal from the judgment (see CPLR 5520 [c]).

“Proof that a defendant was properly served with process is a prerequisite to the entry of a default judgment against that defendant (see CPLR 3215 [f]; Cordero v Barreiro-Cordero, 129 AD3d 899 [2015]). ‘Service of the summons [is] complete . . . in the case of service pursuant to CPLR 312-a, by filing the acknowledgment of receipt, which constitutes proof of service (CPLR 312-a [b] [1]; 306 [d])’ ” (Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U], *2[App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019], quoting Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record fails to demonstrate that a signed acknowledgment of receipt was returned to plaintiff (see CPLR 312-a [d]). As a result, plaintiff failed to acquire personal jurisdiction over defendant (see CPLR 312-a [b]; Krasa v Dial 7 Car & Limousine Serv., Inc., 147 AD3d 744, 745 [2017]; Castillo v JFK Medport, Inc.,116 AD3d 899, 900 [2014]; Klein v Educational Loan Servicing, LLC,71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. v Huch,50 AD3d 963, 964 [2008]). Consequently, defendant’s cross motion should have been granted.

Accordingly, the judgment is reversed, the order entered August 13, 2018 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion for, in effect, summary judgment dismissing the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint without prejudice.

WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 12, 2020

Cited in this decision

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

Active Care Med. Supply Corp. v Kemper Ins. Co. (2019 NY Slip Op 50923(U)) FollowedThe provider failed to acquire personal jurisdiction through mailed service without a returned acknowledgment or another method of service.
Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co. (2015 NY Slip Op 25164)The insurer did not waive its jurisdictional defense by failing to move within 60 days when no action had been commenced.

Cited by

A label shows how the later decision treated this one.

Daily Med. Equip. Distrib. Ctr., Inc. v American Ind. Ins. Co. (2021 NY Slip Op 50639(U)) FollowedThe provider's default judgment motion failed because it did not establish personal jurisdiction over the insurer.

Similar decisions

Freedom Chiropractic, P.C. v 21st Century Ins. Co. (2020 NY Slip Op 50686(U))The provider's default judgment was vacated because its mailed motion gave the insurer less than the required 13 days' notice.
Domny Med. Servs., P.C. v First Acceptance Ins. Co., Inc. (2019 NY Slip Op 52048(U))The provider failed to establish personal jurisdiction because it supplied no signed acknowledgment of service under CPLR 312-a. The provider mailed the summons and complaint to an out-of-state insurer, which moved before answering to dismiss under CPLR 3211 (a) (8).
Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 51120(U))The provider failed to acquire personal jurisdiction because the record showed no signed acknowledgment of mailed service or timely alternative service.
Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co. (2016 NY Slip Op 51072(U))An entered default declaratory judgment barring no-fault coverage has preclusive effect even without service of notice of entry.
Doctor Goldshteyn Chiropractic, P.C. v Empire Fire & Mar. Ins. Co. (2021 NY Slip Op 50722(U))A default judgment under CPLR 3215 (i) may be entered only in a pending action.