Opinion
2018-2007 K C 2018-2562 K C
09-11-2020
LONGEVITY MEDICAL SUPPLY, INC., as Assignee of Young, Flora, Respondent, v. 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, v. 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. (Lower Court # 732746/17)
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. (Lower Court # 732746/17)
PRESENT: THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ
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 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.