July 2, 2021

Daily Med. Equip. Distrib. Ctr., Inc. v American Ind. Ins. Co. (2021 NY Slip Op 50639(U))

Headnote

The court considered the service of the summons and complaint, which were served by certified mail, return receipt requested, pursuant to CPLR 312-a. The main issue decided was whether plaintiff had acquired personal jurisdiction over defendant, as service was not completed within 120 days of the filing of the summons and complaint. The holding of the case was that the order granting plaintiff's motion for the entry of a default judgment was reversed, with costs, and plaintiff's motion for the entry of a default judgment was denied. Therefore, the court determined that the plaintiff had failed to establish that it had acquired personal jurisdiction over the defendant, and as a result, the motion for a default judgment should have been denied.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v American Ind. Ins. Co. (2021 NY Slip Op 50639(U))

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

Daily Medical Equipment Distribution Center, Inc., as Assignee of Balderrna, David, 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 (Rosemarie Montalbano, J.), entered January 8, 2019. The order granted plaintiff’s motion for the entry of a default judgment.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion for the entry of a default judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for the entry of a default judgment.

The summons and complaint in this action were served by certified mail, return receipt requested, pursuant to CPLR 312-a. “Under CPLR 312-a, service is complete on the date the signed acknowledgment of receipt is mailed or delivered to the plaintiff. The signed acknowledgment of receipt constitutes proof of service” (New York Med. Rehab., P.C. v Travelers Ins. Co., 40 Misc 3d 76, 79 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [citation omitted]). Plaintiff’s papers did not contain an acknowledgment of service as required by CPLR 312-a, and plaintiff did not demonstrate that service was otherwise completed within 120 days of the filing of the summons and complaint in 2015 (see CCA 411). As plaintiff failed to establish that it had acquired personal jurisdiction over defendant (see CPLR 312-a [b]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Great Health Care Chiropractic, [*2]P.C. v State Farm Mut. Auto. Ins. Co., 67 Misc 3d 142[A], 2020 NY Slip Op 50735[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), plaintiff’s motion should have been denied.

Accordingly, the order is reversed and plaintiff’s motion for the entry of a default judgment is denied.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021