April 5, 2011

St. Dominick Med. Servs., P.C. v Progressive Ins. Co. (2011 NY Slip Op 50609(U))

Headnote

The main issue in the case was whether the plaintiff had properly served the defendant with a summons and complaint in a no-fault benefits action. The defendant argued that process had not been properly served because they had not signed and returned the acknowledgment of receipt of the summons and complaint within 30 days. The court considered the fact that the plaintiff had attempted to serve the defendant via mail, but the defendant had not signed and returned the acknowledgment of receipt. As a result, the court held that service of process was not effectuated pursuant to CPLR 312-a, and no personal jurisdiction was acquired. Therefore, the court reversed the lower court's decision and granted the defendant's motion to dismiss the complaint.

Reported in New York Official Reports at St. Dominick Med. Servs., P.C. v Progressive Ins. Co. (2011 NY Slip Op 50609(U))

St. Dominick Med. Servs., P.C. v Progressive Ins. Co. (2011 NY Slip Op 50609(U)) [*1]

St. Dominick Med. Servs., P.C. v Progressive Ins. Co.

2011 NY Slip Op 50609(U) [31 Misc 3d 132(A)]

Decided on April 5, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
.

St. Dominick Medical Services, P.C. as Assignee of MARIA MOHAMMED, Respondent, NO~ 2010-268 RI C
against
Progressive Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Kim Dollard, J.), entered December 17, 2009. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits by personally serving defendant via mail pursuant to CPLR 312-a. Thereafter, defendant moved to dismiss the complaint on the ground that process had not been properly served. In its moving papers, defendant asserted that since it had not signed the acknowledgment of receipt of the summons and complaint and returned it to plaintiff within 30 days of receiving it, plaintiff was required to serve defendant in another manner and had failed to do so. In opposition to the motion, plaintiff’s attorney stated, among other things, that defendant should be compelled to sign the acknowledgment of receipt of the summons and complaint. The Civil Court denied defendant’s motion.

Since defendant did not sign and return the acknowledgment of receipt of the summons and complaint, service of process was not effectuated pursuant to CPLR 312-a, and no personal jurisdiction was acquired (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]). Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: April 05, 2011