Queens Community Med. Ctrs. v Eveready Ins. Co. (2005 NY Slip Op 50544(U))

Civil Court of the City of New York, Kings County

105699/04

For petitioner: Gary Tsirelman, P.C., Brooklyn, NY

For respondent: Wollerstein & Futoran, New York, NY

Arlene P. Bluth, J.

Upon the foregoing cited papers, petitioner seeks to vacate a No-Fault Master Arbitrator’s Award pursuant to CPLR § 7511, and respondent seeks to dismiss the petition. For the following reasons, the petition is dismissed.

Respondent argues that this Court lacks personal jurisdiction over it because petitioner failed to properly serve the notice of petition and petition. Petitioner maintains that it properly [*2]served respondent simply by mailing the petition, via regular mail, to Maria Weissman, P.C. It is undisputed that Ms. Weissman is neither employed by respondent nor authorized to receive service of process on its behalf. In fact, Ms. Weissman is not even the attorney who represented respondent in the arbitration. In the lower arbitrator’s award annexed to petitioner’s papers, the cover page lists not Ms. Weissman but “Noreen Campbell, Esq.” as the attorney for respondent. Ms. Weissman is merely the attorney who prepared respondent’s brief before the Master Arbitrator.

Section 7502(a) of the CPLR provides: “A special proceeding shall be used to bring before a court the first application arising out of an arbitrable controversy which is not made by motion in a pending action.” The instant matter qualifies as such a “first application.” To commence a special proceeding, a party files a petition (CPLR § 304), notice of which must be served in the same manner as a summons (CPLR § 403(c)). The CPLR provides for various methods of service, but does not provide for service upon a party’s attorney. See CPLR § 308 et seq. Moreover, service of process by regular mail alone is never sufficient. Id.

Therefore, petitioner’s service on Ms. Weissman was insufficient to obtain jurisdiction over respondent. See Matter of Country Wide Ins. Co., 114 AD2d 754, 494 NYS2d 709 [1st Dept 1985]. The cases petitioner cites, including Knickerbocker Insurance Company v. Gilbert, are distinguishable, as they address the sufficiency of serving a notice to stay arbitration upon the very attorney representing the respondent in the pending arbitration. See Knickerbocker Ins. Co., 28 NY2d 57, 65, 320 NYS2d 12, 17 [1971] (describing a notice to stay arbitration as “invited by the notice to arbitrate.”). See also Green Bus Lines, Inc. v. Elliot, 102 Misc 2d 1029, 1032, 424 NYS2d 1019, 1021 [Sup Ct, Queens Cty 1980]. In contrast, this proceeding was brought to vacate an award in an already completed arbitration. Therefore, pursuant to CPLR § 403(c), the notice of petition had to be served in the same manner as a summons. See Star Boxing, Inc. v. DaimlerChrysler Motors Corp., NYLJ, Apr. 8, 2005, at 27, col 1, 2005 NY Slip Op 02669 [2d Dept].

Section 7503(c) of the CPLR specifically provides that service of an application to stay arbitration “may be made upon the adverse party, or upon the attorney if the attorney’s name appears on the demand for arbitration or the notice of intention to arbitrate.” CPLR § 7503(c). But the statute says nothing about serving a notice to vacate a Master Arbitrator’s Award on an attorney. Thus, even if Ms. Weissman’s name appeared on the demand for arbitration or the notice of intention to arbitrate something not alleged or demonstrated here petitioner’s service on Ms. Weissman was improper.

In its reply, petitioner asks this Court for leave to properly serve respondent, and that such service relate back to the date of the original service in order to comply with the 90-day statute of limitation. This Court has no discretion to override the statute of limitation. See Arnold v. Mayal Realty Co., 85 NE2d 616, 617, 299 NY 57, 60 [1949]. Therefore, petitioner’s request must be denied. [*3]

Accordingly, the petition is dismissed for lack of personal jurisdiction.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________