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Brown v. Midrox Ins. Co.

Supreme Court of New York, Third Department

July 11, 2013

SHIRLEY A. BROWN, Appellant,
v.
MIDROX INSURANCE COMPANY, Respondent.

Calendar Date: May 23, 2013

Shirley A. Brown, Richmond, Virginia, appellant pro se.

Hiscock & Barclay, LLP, Albany (Alexandra M. George of counsel), for respondent.

Before: Peters, P.J., Lahtinen, McCarthy and Garry, JJ.

MEMORANDUM AND ORDER

Peters, P.J.

Appeal from an order of the Supreme Court (McGrath, J.), entered March 6, 2012 in Columbia County, which, among other things, granted defendant's cross motion to dismiss the complaint.

Plaintiff owns a rental property in Columbia County, for which she purchased a landlords policy of insurance from defendant. On January 7, 2009, the property sustained damage and plaintiff thereafter submitted a claim to defendant. Defendant determined the actual cash value of the loss and, in February 2009, plaintiff accepted payment. In April 2010, plaintiff submitted a supplemental claim to defendant, which was denied as untimely.

Plaintiff commenced this action and defendant answered, asserting, among other defenses, lack of personal jurisdiction. Plaintiff moved for a default judgment following defendant's counsel's late arrival to a preliminary conference. Defendant opposed and cross-moved to dismiss the complaint. Supreme Court denied plaintiff's motion, granted defendant's cross motion and dismissed the complaint for lack of personal jurisdiction [1]. Plaintiff appeals.

Inasmuch as plaintiff failed to serve defendant in the manner required by law, Supreme Court properly granted defendant's cross motion and dismissed the complaint. Plaintiff did not effect personal service on defendant (see CPLR 311 [a] [1]; Strong v Bi-Lo Wholesalers, 265 A.D.2d 745, 745 [1999]), nor did she effect service pursuant to the requirements of the Business Corporation Law (see Business Corporation Law § 306 [b] [1]). Furthermore, although plaintiff mailed the summons and complaint to defendant, she failed to, among other things, include the required statements of service by mail and acknowledgment of receipt with her mailing. Thus, her attempt at service did not satisfy the alternative requirements of CPLR 312-a (see CPLR 312-a [a]; Clarke v Smith, 98 A.D.3d 756, 756 [2012]; Matter of Maddox v State Univ. of N.Y. at Albany, 32 A.D.3d 599, 600 [2006], lv denied 8 N.Y.3d 803 [2007], appeal dismissed 8 N.Y.3d 978 [2007]; Hilaire v Dennison, 24 A.D.3d 1152, 1152 [2005]; Strong v Bi-Lo Wholesalers, 265 A.D.2d at 745). Plaintiff's pro se status and defendant's actual notice of the action provide no basis for a different result (see Matter of Maddox v State Univ. of N.Y. at Albany, 32 A.D.3d at 600; Goldmark v Keystone & Grading Corp., 226 A.D.2d 143, 144 [1996]).

Furthermore, in light of the foregoing, Supreme Court's denial of plaintiff's motion for a default judgment was also proper. As is relevant here, "[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint" (CPLR 3215 [f]; see Oyague v Steven O. Schwartz, M.D., P.C., 93 A.D.3d 1044, 1045 [2012], lv dismissed 19 N.Y.3d 1014 [2012]), which plaintiff failed to do.

Lahtinen, McCarthy and Garry, JJ., concur.

ORDERED that the order is affirmed, without costs.


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