Opinion
Index No. CV-707862-22/RI
11-09-2022
JESSICA ZAJAC A/A/O RAMON RODRIGUEZ Plaintiff, v. STATE NATIONAL INSURANCE COMPANY Defendant,
Unpublished Opinion
DECISION AND ORDER
HON. MATTHEW P. BLUM, JUDGE CIVIL COURT
Papers Numbered
Notice of Motion, Exhibits Annexed . . . . . . . . . . . . . . . . . . . . . . . .1
Affirmation in Opposition and Cross motion. Exhibits Annexed . . . . 2
Affirmation in Opposition, Exhibits Annexed . . . . . . . . . . . . . . . . . . 3
Upon the foregoing cited papers, and oral argument, the Decision/Order on the motions are as follows:
PROCEDURAL HISTORY
Defendant moves the court for dismissal on the grounds that Plaintiff improperly served the summons and complaint and therefore the Court lacks jurisdiction. Plaintiff filed opposition and cross moves the Court for summary judgement based upon Defendant's failure to either pay or deny the claim in a timely fashion as required under the insurance regulations.
DISCUSSION
On or about November 30, 2021, assignor Ramon Rodriguez, was allegedly involved in a motor vehicle accident that allegedly caused him to sustain injuries. As a result of these alleged injuries, assignor sought medical treatment from Plaintiff for medical services rendered on March 7, 2022. To date, Defendant has failed to deny or pay the claim. This action was brought by Plaintiff based upon that failure, by the filing of a summons and complaint on approximately April 27, 2022. Defendant acknowledged receipt of the summons and complaint by USPS regular mail on or about May 16, 2022. However, defendant argues, that the Court lacks jurisdiction over the Defendant as service was never complete, because under the CPLR for service to be complete in this manner. Defendant must complete and return an acknowledgement of receipt and delivery within thirty days, an act never completed by defendant. Plaintiff does not argue the fact that there was never an acknowledgement of receipt sent by Defendant. Instead, Plaintiff argues that Defendant's filing of an answer, the filing of the instant motion before the Court, and Defendants subsequent Court appearance via Microsoft Teams all constitute waivers of that defense and thus, Defendant's motion should be dismissed. Plaintiff further argues that as service was proper and there is no evidence that Defendant has ever paid or denied the claim, Plaintiffs cross motion for summary judgment should be granted.
CPLR § 312 states:
(a) Service. As an alternative to the methods of personal service authorized by section 307, 308, 310, 311 or 312 of this article, a summons and complaint, or summons and notice, or notice of petition and petition may be served by the plaintiff or any other person by mailing to the person or entity to be served, by first class mail, postage prepaid, a copy of the summons and complaint, or summons and notice or notice of petition and petition, together with two copies of a statement of service by mail and acknowledgement of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender.
(b) Completion of service and time to answer.
1. The defendant, an authorized employee of the defendant, defendant's attorney or an employee of the attorney must complete the acknowledgement of receipt and mail or deliver one copy of it within thirty (30) days from the date of receipt. Service is complete on the date the signed acknowledgement of receipt is mailed or delivered to the sender. The signed acknowledgement of receipt shall constitute proof of service.
Pursuant to CPLR §312. Defendant must acknowledge receipt of the summons and complaint by mailing back an acknowledgement of service. In the case before the Court. Defendant has not done this. The Court looks to Active Care Med. Supply Corp. v. Kemper Ins. Co, 2019 N.Y. Misc. LEXIS 3037, in which the Appellate Term, Second Department reversed a lower Court's decision to grant Plaintiff Summary Judgment and deny a defendant's crossmotion to dismiss where there was no acknowledgment of service as dictated by statute. That matter, as in the case before the Court now, the record is clear that there was neither an acknowledgment of service, nor any attempt by Plaintiff to attempt service in another manner when they failed to receive an acknowledgement of service. The Court in that matter reversed the lower Court decision and granted defendant's motion to dismiss.
The Court now will focus on Plaintiffs argument that the Defendant's filing of an answer and their appearance on the scheduled court date to argue the motion waives this defense. The Court does not agree with the Plaintiff. The Court file would indicate that the Defendant filed both their answer and their motion to dismiss on July 7, 2022. In paragraph 29 of Defendant's answer the Defendant states in sum and substance, "Plaintiff improperly served the Defendant State National Insurance Company by serving the summons and complaint via USPS without Defendant's acknowledgment".
In Kostelanetz & Fink, L.L.P. v Hui Qun Zhao, 180 Misc.2d 847 (NY County Civ. Ct. 1999). Justice Acosta ruled "The court finds that CPLR §320(b) which permits a defendant to answer a complaint while simultaneously raising a challenge to the court's jurisdiction, applies even when plaintiff attempts to serve by mail pursuant to CPLR §312-a. Thus, plaintiff s claim that defendant waived his jurisdictional challenge by voluntarily appearing in the action is meritless. Defendant's objection to personal jurisdiction is effectively preserved by virtue of CPLR §320(b)." As the Defendant in the present matter before the Court raised the issue of service in paragraph 29 of their answer, the Court finds that Defendant acted properly and did not waive the defense of jurisdiction.
As Defendant failed to return the acknowledgment of service, and Plaintiff failed to attempt service in another manner, the Court finds that there was no service on Defendant, and therefore the Court lacks jurisdiction over the Defendant.
As such, Defendant's motion to dismiss is granted, and Plaintiffs cross motion for summary judgment is hereby denied as premature as there was no proper service on Defendant.