September 11, 2020

Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2020 NY Slip Op 51118(U))

Headnote

The relevant facts considered by the court included a dispute over whether the plaintiff obtained personal jurisdiction over the defendants in an action to recover assigned first-party no-fault benefits. The plaintiff alleged that the summons and complaint were served by mail pursuant to CPLR 312-a, but there was no acknowledgment of service in their papers. The defendants moved to dismiss the complaint on the ground that the plaintiff had failed to obtain personal jurisdiction over them, and the Civil Court denied the motion. The main issue decided was whether the plaintiff had acquired personal jurisdiction over the defendants, and the holding of the court was that the record failed to demonstrate that a signed acknowledgment of receipt was returned to the plaintiff, and thus they had failed to acquire personal jurisdiction over the defendants, resulting in the reversal of the lower court's decision and the granting of the defendants' motion to dismiss the complaint.

Reported in New York Official Reports at Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2020 NY Slip Op 51118(U))

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

Longevity Medical Supply, Inc., as Assignee of Young, Flora, Respondent,
against
American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2go Auto Insurance, Defendants, and Omni Indemnity Company, Appellant.
Longevity Medical Supply, Inc., as Assignee of Young, Flora, Respondent,
against
American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2go Auto Insurance, Appellants, Omni Indemnity Company, Defendant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants and defendants. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeals from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 18, 2018. The order, insofar as appealed from by defendant Omni Indemnity Company and insofar as separately appealed from by defendants American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2go Auto Insurance, denied defendants’ motion to dismiss the complaint.

ORDERED that, on the court’s own motion, the appeals are consolidated for the purposes of disposition; and it is further,

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs on each appeal, and defendants’ motion to dismiss the complaint is granted.

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. However, plaintiff’s papers do not contain an acknowledgment of service. Defendants moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff cross-moved for summary judgment. In an order entered September 18, 2018, insofar as appealed from, the Civil Court denied defendants’ motion.

When service of the summons in the Civil Court is other than by personal delivery, service is complete upon the filing of proof of service (see CCA 410 [b]), and, with respect to a purported service by mailing pursuant to CPLR 312-a, proof of service involves an acknowledgment of receipt of the summons and complaint as provided for in CPLR 312-a (see [*2]CPLR 306 [d]; see generally Domny Med. Servs., P.C. v First Acceptance Ins. Co. Inc., 66 Misc 3d 129[A], 2019 NY Slip Op 52048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; 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]), or that service was otherwise completed within 120 days of the filing of the summons and complaint (see CCA 411). Thus, plaintiff failed to acquire personal jurisdiction over defendants (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]).

Accordingly, the order, insofar as appealed from, is reversed and defendants’ motion to dismiss the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 11, 2020