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St. Dominick Medical Services, P.C. As Assignee of Maria Mohammed v. Progressive Insurance Company

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


April 5, 2011

ST. DOMINICK MEDICAL SERVICES, P.C. AS ASSIGNEE OF MARIA MOHAMMED,
RESPONDENT,
v.
PROGRESSIVE INSURANCE COMPANY,
APPELLANT.

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

St. Dominick Med. Servs., P.C. v Progressive Ins. Co.

Decided on April 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON 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.

Plaintiff commenced this action to recover assigned first-party no-fault benefits by personally serving defendant via mail pursuant to CPLR 312-a. Thereafter, defendant moved to dismiss the complaint on the ground that process had not been properly served. In its moving papers, defendant asserted that since it had not signed the acknowledgment of receipt of the summons and complaint and returned it to plaintiff within 30 days of receiving it, plaintiff was required to serve defendant in another manner and had failed to do so. In opposition to the motion, plaintiff's attorney stated, among other things, that defendant should be compelled to sign the acknowledgment of receipt of the summons and complaint. The Civil Court denied defendant's motion.

Since defendant did not sign and return the acknowledgment of receipt of the summons and complaint, service of process was not effectuated pursuant to CPLR 312-a, and no personal jurisdiction was acquired (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]). Accordingly, the order is reversed and defendant's motion to dismiss the complaint is granted.

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

Decision Date: April 05, 2011

20110405

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