Kalitenko v Integon Natl. Ins. Co. (2023 NY Slip Op 50218(U))

Index No. CV-713066-22/RI

Kopelevich & Feldsherova PC for Plaintiff

Rossillo & Licata, PC for Defendant

Robert J. Helbock Jr., J.

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

Upon the foregoing cited papers, the decision on Defendant’s motion is as follows:

Plaintiff, SERGEY KALITENKO MD (hereinafter, “Plaintiff”), as assignee of NORMAN BARAHONA (hereinafter, “Assignor”), commenced this action against the defendant, INTEGON NATIONAL INS. CO. (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion for summary judgment pursuant to CPLR 3212 for an order dismissing the instant matter due to the Assignor’s failure to appear for duly noticed independent medical examinations and examinations under oath. Defendant submitted opposition to the motion; and the motion was argued before the undersigned on March 2, 2023.

DISCUSSION

The procedural history of this matter warrants an explanation before the Defendant’s instant motion may be discussed. The summons and complaint in this matter were filed by the Plaintiff on July 15, 2022. An affidavit of service was filed in this matter on August 26, 2022, demonstrating that service was made outside the City of New York, in Saddle Brook, New Jersey, on July 27, 2022. According to section 402(b) of the Civil Court Act, “If the summons is served by any means other than personal delivery to the defendant within the city of New York, it shall provide that the defendant must appear and answer within thirty days after proof of service is filed with the clerk.” In this matter, service was made outside the City of New York. Therefore, the Defendant had thirty days to file its answer from when the affidavit of service was filed with the Court (August 26, 2022). The Defendant filed its answer on October 4, 2022, more than the 30-day statutory period. Plaintiff filed a rejection of Defendant’s answer two days later on October 6, 2022. The Defendant filed the instant motion on December 1, 2022. Notably, Defendant did not move to compel the Plaintiff to accept its late answer.

Since Defendant’s answer was rejected, issue has not been joined, and Defendant’s motion for summary judgment was improper. The joinder of issue is a prerequisite that is “strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]).

Under CPLR 3012(d), a court may “extend the time to appear or plead, or compel the acceptance of an untimely pleading, ‘upon such terms as may be just and upon a showing of reasonable excuse for delay or default'” (Bank of New York Mellon v Adago, 155 AD3d 594, 595 [2d Dept 2017]). This Court cannot sua sponte compel the Plaintiff to accept the Defendant’s untimely answer as no reasonable excuse for the default has been proffered by the Defendant. Therefore, before the Defendant’s motion for summary judgment can be decided, issue must be joined, by the acceptance of the Defendant’s untimely answer.

Accordingly, it is hereby

ORDERED that Defendant’s motion is DENIED without prejudice.

The foregoing constitutes the Decision and Order of the Court.