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Omni Medical Services, P.C. As Assignee of Curtis Smith, Respondent v. Arch Insurance C/O Gab Robins

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


July 25, 2011

OMNI MEDICAL SERVICES, P.C. AS ASSIGNEE OF CURTIS SMITH, RESPONDENT,
v.
ARCH INSURANCE C/O GAB ROBINS, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 16, 2010.

Omni Med. Servs., P.C. v Arch Ins.

Decided on July 25, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 vacate a default judgment and dismiss the complaint.

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

In this action to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion to vacate a default judgment and dismiss the complaint.

It is "axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" (Elm Mgt. Corp. v Sprung, 33 AD3d 753, 755 [2006], quoting McMullen v Arnone, 79 AD2d 496, 499 [1981] [internal quotation marks omitted]; see Matter of Cartier v County of Nassau, 281 AD2d 477, 478 [2001]). Under CPLR 5015 (a) (4), a default judgment must be vacated once a movant demonstrates a lack of personal jurisdiction (see Citibank v Keller, 133 AD2d 63, 64-65 [1987]; see also Harkless v Reid, 23 AD3d 622, 622-623 [2005]; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402 [2003]). Here, the process server served the summons and complaint upon a clerk employed by defendant's third-party claims administrator, and the record is devoid of any showing that he was an officer, director, managing agent, cashier, or an agent authorized by appointment to accept service on defendant's behalf (see CPLR 311 [a] [1]; Covillion v Tri State Serv. Co., Inc., 48 AD3d 399, 400 [2008]; Gleizer v American Airlines, Inc., 30 AD3d 376 [2006]).

Accordingly, the Civil Court never obtained jurisdiction over defendant and should have granted defendant's motion to vacate the default judgment and dismiss the complaint.

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

Decision Date: July 25, 2011

20110725

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