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Gateway Medical, P.C. As Assignee of Shauntee Ballard v. Progressive Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


March 2, 2011

GATEWAY MEDICAL, P.C. AS ASSIGNEE OF SHAUNTEE BALLARD,
RESPONDENT,
v.
PROGRESSIVE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered December 17, 2009.

Gateway Med., P.C. v Progressive Ins. Co.

Decided on March 2, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The order denied defendant's motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint for lack of personal jurisdiction since the purported service of the summons and complaint under CPLR 312-a was never completed, as defendant never signed and returned an acknowledgment of service. Plaintiff opposed the motion, arguing that defendant should be compelled to sign the acknowledgment or, in the alternative, that plaintiff should be permitted to serve the summons and complaint by another manner. The Civil Court denied defendant's motion, and this appeal ensued.

The record reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. "If the acknowledgment of receipt is not mailed or returned to the sender, the sender is required to effect personal service in another manner" (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see also Patterson v Balaquiot, 188 AD2d 275 [1992]). Plaintiffs did not effect service in another manner. Accordingly, the service was defective and defendant's motion to dismiss the complaint should have been granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: March 02, 2011

20110302

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