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Gateway Medical, P.C. As Assignee of Ruth Weekes v. Progressive Insurance Company

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


August 4, 2011

GATEWAY MEDICAL, P.C. AS ASSIGNEE OF RUTH WEEKES,
RESPONDENT,
v.
PROGRESSIVE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered November 19, 2009.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 4, 2011

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

The order, insofar as appealed from, denied the branch of defendant's motion seeking to dismiss the complaint for lack of personal jurisdiction.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant's motion seeking to dismiss the complaint for lack of personal jurisdiction is granted without prejudice.

In June 2005, plaintiff commenced this action to recover assigned first-party no-fault benefits by mailing a copy of the summons and complaint to defendant pursuant to CPLR 312-a. However, defendant never mailed or delivered a signed acknowledgment of receipt to plaintiff (see CPLR 312-a). Thereafter, defendant served an answer in which it asserted the affirmative defense of lack of jurisdiction. In 2008, plaintiff purchased an index number, filed the summons and complaint with the Civil Court, and filed a notice of trial, but failed to serve defendant with a copy of the summons and complaint. Defendant subsequently moved to strike the notice of trial and dismiss the complaint. By order entered November 19, 2009, the Civil Court granted the branch of defendant's motion seeking to strike the notice of trial and denied the branch of defendant's motion seeking dismissal of the complaint. This appeal by defendant ensued.

As it is uncontroverted that service of process was not effectuated in June 2005 pursuant to CPLR 312-a, the Civil Court did not acquire personal jurisdiction over defendant at that time (see e.g. Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]). Plaintiff purchased an index number and filed its summons and complaint in 2008 (see CCA 400, eff Sept. 8, 2005), but failed to serve a copy of the summons and complaint upon defendant within 120 days after filing as required by CCA 411. Consequently, jurisdiction over defendant was never acquired (CCA 400 [2]). Accordingly, the branch of defendant's motion seeking to dismiss the complaint should have been granted without prejudice (see CCA 411).

Weston, J.P., Pesce and Rios, JJ., concur. Decision

Date: August 04, 2011

20110804

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