October 25, 2019

Parisien v American Ind. Ins. Co. (2019 NY Slip Op 51735(U))

Headnote

The relevant facts the court considered were that the plaintiff mailed the summons and complaint to the defendant by certified mail, return receipt requested, but failed to properly serve the defendant with a copy of the summons and complaint by first-class mail, as required by CPLR 312-a. The main issue decided by the court was whether the plaintiff's failure to properly serve the defendant with the summons and complaint deprived the court of personal jurisdiction over the defendant. The court held that in the absence of proper service, no personal jurisdiction was acquired over the defendant, and therefore the branch of the defendant's motion seeking to dismiss the complaint was granted. The court also noted that even if the plaintiff had properly served the defendant, the complaint would have been dismissed pursuant to CPLR 3211 (a) (8) for other reasons.

Reported in New York Official Reports at Parisien v American Ind. Ins. Co. (2019 NY Slip Op 51735(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Jules Francois Parisien, M.D., as Assignee of Reynoso-Herrera, Rosana, Respondent,
against
American Independent Ins. Co., Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered November 30, 2017. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (8) and directed defendant to serve and file an answer within 30 days after service of the order with notice of entry.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).

The branch of defendant’s motion seeking to dismiss the complaint on the ground that plaintiff failed to properly serve defendant should have been granted. The record establishes that plaintiff mailed the summons and complaint to defendant by certified mail, return receipt requested. “However, [plaintiff] presented no evidence that [a copy] of the summons and complaint w[as] sent to the defendant[ ], by first-class mail, together with, inter alia, two copies of a statement of service by mail and acknowledgment of receipt, and that the signed acknowledgment of receipt [was] mailed or delivered to the plaintiff (see CPLR 312-a [a], [b]). In the absence of proper service, no personal jurisdiction was acquired over the defendant[ ]” [*2](Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; see 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]).

Moreover, we note that even if plaintiff had properly served the summons and complaint upon defendant, defendant would otherwise still have been entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (8) for the reasons stated in Pierre J. Renelique, M.D., P.C., as Assignee of Vernizier, Jean Willy v American Ind. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-2405 K C], decided herewith).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking to dismiss the complaint is granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 25, 2019