Opinion
712683/17
11-09-2018
ULTRA ORTHO PRODUCTS, INC., a/a/o Mack, Amere, Plaintiff, v. NORTH CAROLINA FARM BUREAU INSURANCE GROUP, Defendant.
For plaintiff: Oleg Rybak Esq., The Rybak Firm, 1810 Voorhies Ave, 3rd Fl, Suite, Brooklyn, NY 11235 For defendant: Peter Frucchione Esq., Mintzer Sarowitz Zeris Ledva & Meyers LLP, 39 Broadway, Suite 950, New York, NY 10006
For plaintiff: Oleg Rybak Esq., The Rybak Firm, 1810 Voorhies Ave, 3rd Fl, Suite, Brooklyn, NY 11235
For defendant: Peter Frucchione Esq., Mintzer Sarowitz Zeris Ledva & Meyers LLP, 39 Broadway, Suite 950, New York, NY 10006
Odessa Kennedy, J.
RECITATION, AS REQUIRED BY CPLR3 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:
Notice of Motion 1
Notice of Cross-Motion 2
Answering Affidavit 3
Reply Affidavit 4
Defendant moves to dismiss the complaint for lack of personal jurisdiction and improper service pursuant to CPLR 3211(a)(8) and CPLR 306(b), and for an order awarding defendant costs and sanctions. Plaintiff cross-moves for summary judgment.
Plaintiff commenced this action to recover assigned first party no fault benefits from defendant insurer, which is licensed and registered in North Carolina, for medical services provided to plaintiff's assignor regarding injuries sustained in a collision which occurred in Brooklyn, New York, involving vehicle owned by defendant's insured, a North Carolina resident.
The initial basis of defendant's motion to dismiss is plaintiff's failure to effectuate service pursuant to CPLR 312-a, as defendant refused to sign the ‘Acknowledgement of Receipt by Mail.’
In opposition to the motion, plaintiff asserts that defendant was properly served pursuant to CPLR 312-a, as set forth in the affidavit of its process server, stating he served the summons and complaint with the ‘Acknowledgment of Receipt by Mail’ by first class mail to the defendant as required by the statute.
Citing Appellate Term, Second Department cases, plaintiff contends the process server's affidavit of service constitutes prima facie proof of the method of service and creates a presumption of valid service which defendant could have but failed to rebut. As defendant did not refute the presumption of proper service described in plaintiff's process server's affidavit, the presumption of service, plaintiff argues, remains intact, requiring the Court, as a matter of law to deem service proper. (See US Consults v. APG Inc. , 82 AD3d 753 [App Term, 2d Dept 2011] ; Cavalry Portfolio Servs., LLC v. Reisman 55 AD3d 524 [App Term, 2d Dept 2008] ).
The summons and complaint must be served within 120 days of filing of the summons with notice. (See CPLR 306-b ). While plaintiff relies on Appellate Term decisions to show that presumption of valid service was created by its process server's affidavit, the cases cited by plaintiff's counsel are distinguished from the facts of the instant action. In the cases plaintiff relies upon, compliance with the method of service at issue was established through the affidavit of plaintiff's process server, while in the case at bar, the validity of service is beyond the a process server's dominion.
This Court takes judicial notice respectively of the orders in the actions in US Consults, from Supreme Court, Suffolk County dated March 3, 2009 and in Cavalry Portfolio Services Inc., from Supreme Court, Rockland County dated October 19, 2007. (See Caffrey v. North Arrow Abstract & Settlement Servs., Inc. , 160 AD3d 121, 73 N.Y.S.3d 70 [2d Dept 2018] ).
In US Consults v. APG , to substantiate service, plaintiff submitted its process server's affidavit, which demonstrated compliance with the requirements of CPLR 308(2), to wit, the delivery of the summons and complaint to a person of suitable age and discretion at defendant's residence, and its mailing to the defendant within 20 days thereafter. As the affidavit of service of plaintiff's process server complied with CPLR 308(2), the Appellate Term, Second Department held that the affidavit constituted prima fascia evidence that defendant was "validly served pursuant to CPLR 308(2)," which defendant failed to rebut by its "mere unsubstantiated denial" of the receipt of the summons and complaint (Id. US Consults at 753).
Similarly, in Cavalry Portfolio Servs , as in US Consults , the method of the alleged service was CPLR 308(2). The Appellate Term affirmed trial court's order finding proper service as process servers' affidavit, which set forth compliance "with CPLR 308(2)," established prima facie evidence of proper service. (See Cavalry Portfolio at 524; see also, Bank of NY v. Segui, 68 AD3d 908, 890 N.Y.S.2d 830 [2d Dept 2009], holding process server's affidavit, constitutes prima facie evidence that defendant was validly served pursuant to CPLR 308(2) ).
Contrary to the above cases, wherein proper service, pursuant to CPLR 308(2), was established exclusively through the acts of plaintiff's process server, in the case at bar, the effectiveness of alleged service pursuant to CPLR 312-a, the depends on defendant's willingness to sign the ‘Acknowledgment of Receipt by Mail’.
CPLR 312-a(a) authorizes service by first class mail of the summons and complaint and ‘Acknowledgment of Receipt by Mail’ to the defendant. Within 30 days of receipt, defendant must then sign and mail or deliver the signed Acknowledgment of Receipt to the sender. The statute further provides that "service is complete on the date the signed Acknowledgment of Receipt’ is mailed or delivered to the sender. If the defendant refuses to return the signed acknowledgment, the plaintiff must serve process anew, using one of the traditional methods of service (See CPLR 312-a(b)(1 ) ).
As service remains incomplete pursuant to CPLR 312-a until the ‘Acknowledgment of Receipt’ is signed by defendant, and mailed or delivered to the sender, plaintiff's process server cannot establish valid service without defendant's cooperation.
In the case at bar, defendant did not sign and return the acknowledgement of receipt of the summons and complaint, thus, service of process was not effectuated pursuant to CPLR 312-a, and no personal jurisdiction was acquired. (See St. Dominick Medical Servs., P.C. v. Progressive Ins. Co. , 31 Misc 3d 132(A), 927 N.Y.S.2d 819 [App Term, 2nd 11th & 13th Jud. Dists., 2011] ).
Moreover, defendant's refusal to return the signed ‘Acknowledgment of Receipt’ to plaintiff within 30 days of receipt of the mail, placed plaintiff on notice that its attempted mail service was aborted, and it must then resort to other methods of service (See Kostelanetz & Fink v. Hui Qun Zhao , 180 Misc 2d 847, 694 N.Y.S.2d 285 [Civ Ct, New York County, 1999] ). While plaintiff was on notice of the cancelation of service in the instant matter, there is no evidence of proper service on plaintiff through other methods.
Plaintiff further maintains that defendant's motion should be denied as deficient, because defense counsel's affirmation in support of the motion inaccurately represents that defendant's affidavit is annexed as an exhibit.
Plaintiff correctly states defendant's affidavit is not annexed to the motion. Yet, in cases where a substantial right of a party is not prejudiced, the court is permitted to disregard a party's mistake, omission, defect or irregularity. (See CPLR 2001, Wade v. Knight Transp., Inc., 151 AD3d 1107, 1109, 58 N.Y.S.3d 458 ).
The facts here are analogous to those of Riley v. Segan, Nemerov & Singer , where the Appellate Division held that the motion should have been considered the on the merits, because it is clear that defendants mistakenly failed to attach the letter to their moving papers and corrected their mistake by including it on reply without prejudicing the plaintiff. (See Riley v. Segan, Nemerov & Singer 82 AD3d 572, 918 N.Y.S.2d 488 [App Div, First Dept 2011] )
Similarly, in the case at bar, defense counsel in his affirmation in support of the motion sets forth in detail the substance of defendant's affidavit and rectifies the deficiency by annexing the affidavit to the reply. Plaintiff's counsel has thus been on notice of the contents of the affidavit when he received the motion and was not prejudiced by its subsequent annexation to the reply.
Moreover, defendant's affidavit is insignificant regarding the validity of service under CPLR 312-a. The contents of defendant's affidavit stating he may or may not have received the summons and compliant is of no moment as to whether service was properly effectuated pursuant to CPLR 312-a. (see Clarke v. Smith, 98 AD3d 756 [3d Dept 2012] ).
Accordingly, defendant's motion to dismiss the complaint is granted on the basis that plaintiff failed to effectuate service on defendant. This court lacks jurisdiction over the matter absent proper service and will thus not consider defendant's remaining contentions. It is hereby ordered that the action is dismissed.