February 26, 2007

R.J. Professional Acupuncturist, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50368(U))

Headnote

The main issue in the case was whether R.J. Professional Acupuncturist, P.C. was required to serve a notice of petition and petition in accordance with CPLR 402 and 403 in its special proceeding to vacate a master arbitrator's award. The court considered the fact that R.J. commenced the special proceeding to vacate the award without serving the notice of petition and petition in the manner provided for in CPLR 403(c). The court also considered that the notice of petition was served on Allstate's attorney by regular mail, which was not in accordance with the requirements of CPLR 403(c). The holding of the court was that the motion to dismiss the proceeding for improper service of process was properly granted, affirming the order without costs. Therefore, the decision was in favor of Allstate Insurance Company and the order to dismiss the proceeding was upheld.

Reported in New York Official Reports at R.J. Professional Acupuncturist, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50368(U))

R.J. Professional Acupuncturist, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50368(U)) [*1]

R.J. Professional Acupuncturist, P.C. v Allstate Ins. Co.

2007 NY Slip Op 50368(U) [14 Misc 3d 142(A)]

Decided on February 26, 2007

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2006-357 K C.

R.J. Professional Acupuncturist, P.C. a/a/o Wen Xian Ni, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 28, 2005. The order granted a motion to dismiss the proceeding for improper service of process.

Order affirmed without costs.

R.J. Professional Acupuncturist, P.C. (R.J.) commenced the instant special proceeding to vacate a master arbitrator’s award, which affirmed the arbitrator’s award denying R.J.’s claim for assigned first-party no-fault benefits in the sum of $1,549.26. The insurer, Allstate Insurance Company (Allstate), moved to dismiss the proceeding, based on R.J.’s failure to serve a notice of petition and petition in accordance with CPLR 402 and 403. R.J. contends that a petition was not required in this case because it was appealing as a remedy after losing in arbitration and, thus, was continuing, and not commencing, an action. The court below granted Allstate’s motion to dismiss for failure to properly serve a notice of petition and petition in the manner provided for in CPLR 403 (c).

R.J. commenced the instant proceeding by serving the notice of petition served on Allstate’s attorney by regular mail. Pursuant to CPLR 403 (c), a notice of petition shall be served in the same manner as a summons in an action (Matter of Star Boxing, Inc. v DaimlerChrysler Motors Corp., 17 AD3d 372 [2005]). In view of the foregoing, the motion to dismiss the proceeding was properly granted on the ground of improper service (see CPLR 403 [c]).

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 26, 2007