Opinion
09-29-2021
New York Wellness, PT, PC a/a/o FEARON, JOY, Plaintiff, v. Plymouth Rock Assurance, Defendant.
Plaintiff: Oleg Rybak The Rybak Firm PLLC Defendant: Todd Hyman Brand Glick Brand Glick & Brand, P.C.
Plaintiff: Oleg Rybak The Rybak Firm PLLC
Defendant: Todd Hyman Brand Glick Brand Glick & Brand, P.C.
Jill R. Epstein, J.
Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this Motion:
Notice of Motion and Affidavits Annexed 1
Order to Show Cause and Affidavits Annexed
Answering Affidavits 2
Replying Affidavits 3
Other
Defendant, Plymouth Rock Assurance (hereinafter "Defendant, moves by Notice of Motion dated May 10, 2019, for an Order pursuant to CPLR §§ 3211(8) and 308 for an Order dismissing the instant action for improper service and for Summary Judgment in favor of defendant pursuant to CPLR § 3212 due to, inter alia, exhaustion of defendant's insurance coverage. As to the jurisdictional claim, it is defendant's contention that since Plaintiff, New York Wellness, PT, PC a/a/o Fearon, Joy (hereinafter "Plaintiff") served defendant via Federal Express, and not "personally," that no jurisdiction was obtained over defendant, as defendant never returned a signed acknowledgment of service as required by CPLR § 312. CPLR § 312 provides that such mail service is complete only upon the return of a signed acknowledgment.
Defendant's argument might typically be justified. In this instance, however, plaintiff submits the affidavit of its process service, David Lett, sworn to on January 21, 2021, and annexed as Exhibit "1", to the Affirmation in Opposition of Oleg Rybak, Esq., dated April 9, 2021. The affidavit of service, which is factually unrefuted by defendant, states that Mr. Lett served the Summons and Complaint upon Defendant on December 31, 2020 at 1:14 P.M., via Federal Express, with Tracking Number 782107818732, mailed to 901 Franklin Avenue, Garden City, NY 11530. It is defendant's position that this manner of service is insufficient as Defendant failed to return a signed Acknowledgment of Service. However, the Affidavit of Mr. Lett makes clear that when he attempted to personally serve the papers upon defendant, he was advised by "Jim W. Security Guard/Legal" that the office was closed due to COVID and that the Legal Department instructed that the Summons and Complaint be served "via Fed-Ex" to the address at 901 Franklin Avenue. Mr. Lett described the security guard as being a male, with brown skin and gray hair, approximately 55 years old, 5' 10" tall and approximately 200 pounds. Defendant submits nothing to contradict either the attempted service upon "Jim W. Security Guard/Legal" or that the service policy at the time of service, as described by plaintiff, was in any way inaccurate.
On one hand, plaintiff's agent told the process server that the Summons and Complaint was to be served by Federal Express, and on the other hand, defendant, having received the Federal Express transmission, asserts that service was incomplete because defendant chose not to return a signed acknowledgment of service. The document was served in the manner in which the process server was directed to serve it. It is understandable that during the pandemic, with employees working remotely, defendant's counsel may have chosen to modify the manner in which it would accept and process service. What is not understandable, is defendant's attempt to benefit from its own service requirement in order to put plaintiff in an untenable position.
It should be noted that defendant objects to a purported delay in plaintiff meeting its briefing schedule herein. However, defendant had adequate time to reply to plaintiff's opposition and did, in fact, interpose such a Reply. There is no prejudice to defendant from any purported delay.
"A defendant seeking to vacate a default in answering or appearing upon the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action". Community Preserv. Corp. v Northern Blvd Prop. LLC, 140 A.D.3d 689 [2d Dept 2016]. The communications between the parties clearly indicates that Defendant knew of this claim, whether or not it returned a signed authorization.
As the Court finds defendant's argument as to personal service disingenuous, the Motion to Dismiss is denied in all respects and there is no need to examine the balance of defendant's arguments as they are moot. The Court need not look to the defendant's allegation of a meritorious defense unless and until defendant shows a reasonable excuse for its default. Lemberger v Congregation Yetev Lev D'Satmar, Inc, 33 A.D.3d 671 [2d Dept 2006]. Instructing plaintiff as to specific service requirements due to a pandemic, and, thereafter, objecting to plaintiff's compliance with that specified manner of service is not such a reasonable excuse.
Plaintiff is correct in stating that defendant's "excuse was vague, undetailed and unsubstantiated, [and] it did not constitute a reasonable excuse for the default" Atlantic Radiology Imaging, PC v Metropolitan Prop & Cas. Ins. Co., 50 Misc.3d 147 (A) [App Term, 2d Dept 2016].
WHEREFORE, it is hereby
ORDERED AND ADJUDGED that Defendant's Motion for an Order pursuant to CPLR §§ 3211(8) and 308 for an Order dismissing the instant action for improper service is denied in all respects.
The foregoing constitutes the decision and order of the Court.