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Hellander v. Metlife Auto & Home Insurance Co.

Civil Court of the City of New York, Richmond County

November 6, 2013

Richard A. Hellander, M.D., P.C. Subrogee of BYAN FRIEND, Plaintiff,
v.
Metlife Auto and HOME INSURANCE COMPANY, Defendant RICHARD A. HELLANDER, M.D., P.C. Subrogee of MAKANJ-SAM ADEDAPO Plaintiff, METLIFE AUTO and HOME INSURANCE COMPANY, Defendant RICHARD A. HELLANDER, M.D., P.C. Subrogee of BORIS MUSHYAKOV, Plaintiff, METLIFE AUTO and HOME INSURANCE COMPANY, Defendant RICHARD A. HELLANDER, M.D., P.C. Subrogee of MARIA QUINONES, Plaintiff, METLIFE AUTO and HOME INSURANCE COMPANY, Defendant RICHARD A. HELLANDER, M.D., P.C. Subrogee of CATHY TERSTENYAK Plaintiff, METLIFE AUTO and HOME INSURANCE COMPANY, Defendant A. HELLANDER, M.D., P.C. Subrogee of XIOMARA MEDRANO, Plaintiff, METROPOLITAN PROPERTY and CASUALTY INS. CO., Defendant. PRECISION DIAGNOSTIC IMAGING, P.C. Subrogee of SIMON ZLOTNIKOV, Plaintiff, INFINITY INSURANCE CO., Defendant.

Unpublished Opinion

Attorney for Plaintiff Joseph Sparacio Staten Island, NY

Attorney for Defendants Freiberg & Peck

Philip S. Straniere, J.

The plaintiff in each of these seven cases commenced actions in Civil Court seeking to be compensated for first party benefits provided to insureds of each defendant insurance carrier pursuant to New York's No-Fault Law (Insurance Law Article 51).

Currently before the court are separate motions filed by each defendant in each action to dismiss the complaint. Because the motions involve common questions of law and fact and the same independent counsel is representing all of the plaintiffs and all of the defendants, the parties agreed that argument in regard to each motion should be heard together. Plaintiffs filed opposition to each motion and defendants a reply.

The common issue in all of these cases involves "timing. " As Jimmy Jones noted in "Good Timing:"

Oh, you need timin' a tick a tick a tick a Good timin' a tock a tock a tock a Timin' is the thing it's true Good timin' brought me to you.

As set forth herein, the failure of the parties to focus on "timing" has placed the court in the "No-Fault World" equivalent of a "time warp [1], " as the plaintiff's use of CPLR §312-a, that is, personal service by mail, for summons and complaints issued in 2004 and earlier, has resulted in a revisiting by the court of the recurring problems created by plaintiff's counsel's reliance on this procedure.

Plaintiffs apparently believing "time is on my side [2] " applies to this litigation, waited about six years, until 2010 to notice these matters for trial. On the other hand the defendants assert that the "time has come today [3] " is the proper standard requiring that the matters all be dismissed as untimely.

In retrospect, had plaintiff heeded the advice of "Hinesy" when he sang "Think of the Time I Save [4], " the court might not be addressing these issues again.

I'm a time study man, and a time study man can't waste time.

For a time study man to waste time is a crime....

But think of the time I save.

Case Time Lines:

In order to keep these matters in perspective it is necessary to set forth a time line of the procedural events in these cases.

1. Index #23250/10Richard Hellander MD, PC a/a/o Bryan Friend v. Metlife Auto & Home

Date of Summons & Complaint April 12, 2004

Date of Answer May 17, 2004

Summons & Complaint Filed November 5, 2010

Answer Filed November 5, 2010

Date of Notice of Trial January 20, 2011

Notice of Trial Filed February 22, 2011

Date of Motion to Dismiss February 21, 2011

Return Date of Motion March 24, 2011

Motion Argued October 24, 2013

2. Index#23390/10Richard Hellander MD, PC a/a/o Makanj-Sam Adedapo v. Metlife Auto & Home

Date of Summons & ComplaintMay 24, 2004

Date of Answer June 4, 2004

Summons & Complaint Filed November 8, 2010

Answer Filed November 8, 2010

Date of Notice of Trial January 20, 2011

Notice of Trial Filed February 22, 2011

Date of Motion to Dismiss February 21, 2011

Return Date of Motion March 24, 2011

Motion Argued October 24, 2013

3. Index#23402/10Richard Hellander MD, PC a/a/o Boris Mushyakov v. Metlife Auto & Home

Date of Summons & Complaint May 25, 2004

Date of Answer June 4, 2004

Summons & Complaint Filed November 8, 2010

Answer Filed November 8, 2010

Date of Notice of Trial January 20, 2011

Notice of Trial Filed February 22, 2011

Date of Motion to Dismiss February 21, 2011

Return Date of Motion March 24, 2011

Motion Argued October 24, 2013

4. Index#23403/10Richard Hellander MD, PC a/a/o Maria Quinones v. Metlife Auto & Home

Date of Summons & Complaint May 25, 2004

Date of Answer June 4, 2004

Summons & Complaint Filed November 8, 2010

Answer Filed November 8, 2010

Date of Notice of TrialJanuary 11, 2011

Notice of Trial Filed February 22, 2011

Date of Motion to Dismiss February 21, 2011

Return Date of Motion March 24, 2011

Motion Argued October 24, 2013

5. Index#23404/10Richard Hellander MD, PC a/a/o v Cathy Terstenyak v. Metlife Auto & Home

Date of Summons & Complaint May 25, 2004

Date of Answer June 4, 2004

Summons & Complaint Filed November 8, 2010

Answer Filed November 8, 2010

Date of Notice of Trial January 20, 2011

Notice of Trial Filed February 22, 2011

Date of Motion to Dismiss February 21, 2011

Return Date of Motion March 24, 2011

Motion Argued October 24, 2013

6. Index#23408/10Richard Hellander MD, PC a/a/o Xiomara Medrano v. Metropolitan Property & Casualty Co.

Date of Summons & Complaint May 25, 2004

Date of Answer June 4, 2004

Summons & Complaint Filed November 8, 2010

Answer Filed November 8, 2010

Date of Notice of Trial January 20, 2011

Notice of Trial Filed February 22, 2011

Date of Motion to Dismiss February 21, 2011

Return Date of Motion March 24, 2011

Motion Argued October 24, 2013

7. Index#23605/10Precision Diagnostic Imaging, PC a/a/o Simon Zlotnikov v. Infinity Insurance Company

Date of Summons & Complaint September 2, 2003

Date of Answer October 14, 2003

Summons & Complaint Filed November 9, 2010

Answer Filed November 9, 2010

Date of Notice of Trial January 21, 2011

Notice of Trial Filed February 22, 2011

Date of Motion to Dismiss February 21, 2011

Return Date of Motion March 24, 2011

Motion Argued October 24, 2013

Legal Issues Presented:

A. Relevant Statutes:

In order to properly analyze the issues raised in these motions, it is necessary to dust off an old copy of the New York City Civil Court Act [NYCCCA] and remind ourselves that prior to September 8, 2005, actions in Civil Court were commenced by service of process and not by filing. Under the old law process was issued by the plaintiff's attorney [NYCCCA §401] and was deemed to be complete either when "personal delivery" was made to the defendant [NYCCCA§402(a)] or if another method of service was utilized"upon the filing of proof of service" with the court [NYCCCA§410]. NYCCCA §409 required the filing of the summons with proof of service within fourteen days of the service of the process. As set forth below, plaintiff did not use any of these traditional means of service of process.

With the passage of NYCCCA §400, as of September 8, 2005 "an action is commenced...by filing a summons and complaint." This section went on to provide that filing meant delivery to the clerk of the court and the payment of the required filing fees. The action would be date stamped and assigned an index number. The index number would then have to appear on the summons prior to it being served upon the defendant. This amendment to the Civil Court Act conformed the procedure for bringing an action in Civil Court with that of the Supreme Court.

Because these seven actions were commenced in 2003 and 2004 before the statute was amended, plaintiff was bound by the "commence by service" provisions of the NYCCCA then in effect.

Rather than utilize a process server to effectuate service on the defendant in the traditional statutory manner, plaintiff elected to use Civil Practice Law & Rules §312-a "personal service by mail" a method of which has been in effect in New York state courts since January 1, 1990. Although this is less expensive and perhaps, in certain situations, a more efficient method of serving process, it does have certain pitfalls and procedural traps not occurring in traditional methods of service such as requiring the defendant to complete and return an acknowledgment of service form in order to obtain personal jurisdiction over a defendant.

Plaintiff alleges in his opposition papers to defendant's motion to dismiss that he used this method to serve each defendant. Plaintiff has not provided the court with an affidavit of mailing of the summons and verified complaint. Plaintiff has not submitted a copy of the "statement of service by mail and acknowledgment of receipt by mail" which the statute requires be included in the mailing of the acknowledgment [CPLR§312-a(d)]. Plaintiff also admits that he did not receive back an acknowledgment of service form from any of the defendants. Plaintiff did however, receive a verified answer from defendant's counsel on each matter. Five of the answers are dated within ten days of the date of the summons and complaint, another thirty-five days, and the last one forty-two days after the date of the plaintiff's pleading. None of the answers were rejected by the plaintiff for being untimely. Although without the existence of some proof of service, it is impossible for the court to determine if the plaintiff could have rejected any of the answers as untimely under the statute.

Each defendant in its answer asserted among its affirmative defenses one alleging that the "court has no jurisdiction over the answering defendant in that said answering defendant has not been properly served with process." A second affirmative defense is that "the plaintiff has failed to properly commence an action, " while a third is that the "plaintiff failed to properly obtain an index number."

After the answer was served on the plaintiff, each of these matters remained dormant with neither side taking any steps to move the litigation. Plaintiff did not file the summons and complaint, nor proof of service, nor purchase an index number as required by the NYCCCA sections in effect at that time. Neither did the defendant chose to purchase an index number nor take any steps move to dismiss the actions at that time. In spite of receiving defendant's answer containing numerous affirmative defenses, many of which if successful would have terminated the actions, plaintiff did not seek to strike these defenses by using CPLR §3211(b).

The litigation stagnated for more than six years, a period of time just slightly less than the Siege of Harlech Castle in the War of the Roses in the 1460's. Suddenly, in November 2010, the plaintiff, perhaps sensing some strategic advantage in now taking action, purchased an index number and filed both the plaintiff's summons and complaint and defendant's answer in each matter. This inaction, of course, created procedural problems for the court to resolve because in the interim the Civil Court switched to the current commence by filing system.

To put this length of time in perspective, if plaintiff's counsel had purchased a male and a female rabbit for his children, in 72 months, assuming they all propagate every thirty days or so, there would be 4, 722, 366, 482, 869, 213, 696 furry little bunnies hoping around looking for Mr. McGregor's carrot patch. That would be almost five sextillion hares able to overcome B'rer Bear and B'rer Fox and prevent B'rer Rabbit from being thrown into a briar patch. It certainly would be a large enough warren to lobby Congress to ban hasenpfeffer recipes from the Food Channel.

As of September 8, 2005, NYCCCA §411 required that service of a summons and complaint "shall be made within one hundred twenty days after the filing of the summons and complaint, ..." Plaintiff never re-served the summons and complaint. Instead, plaintiff's counsel relies on the prior service by mail procedure he utilized originally and asserts that each action was timely commenced in 2003 and 2004. Which, as plaintiff points out, although such service was not acknowledged by the defendant as required by CPLR§312-a, did solicit an answer by each defendant's counsel in a timely manner. Plaintiff contends the service of an answer cured any defects in regard to the service of process issue. Apparently in February 2011, fifteen months after the purchase of the index number in each matter, counsel for each sides had an "epiphany" and decided to take steps to move this litigation. Defendants, having been served with a notice of trial on January 20, 2011 on February21, 2011, issued motions to dismiss plaintiff's complaint. The motion ineach action was returnable March 24, 2011. While plaintiff filed with the court in each mater the required notice of trial on February 22, 2011.

B. Timeliness of the Motions:

The motion of each defendant alleges that the plaintiff failed to serve process on the defendants within 120 days of the filing of the summons and complaint pursuant to "CPLR §304-b." This is not the correct citation. The proper section for service of a summons and complaint in Supreme Court is "CPLR §306-b"and the current language of that section has been in effect since November 21, 2001. In fact, there is no CPLR §304-b. Which, if the court sua sponte corrects the reference, would seem to make this statute applicable to each summons and complaint issued by plaintiff to start these actions in 2003 and 2004 except for one thing; these are Civil Court actions and are governed by NYCCCA §411 which did not become effective until September 8, 2005. So when the plaintiff started these actions by attempting to serve process by CPLR §312-a, the Civil Court was still using "commence by service" and there was no 120 day requirement.

It should be noted that the language recited in defendant's motion attacking the service of process, does not exactly mirror any of the words used in the three different affirmative defenses presented in the answers set forth above. The court supposes that counsel is advocating that pleadings can be added to horse-shoes and hand grenades as things where being close is good enough.

Plaintiff in opposition to each motion references CPLR §3211(e) which provides:

(A)n objection that the summons and complaint, ...was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for a judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship....The papers in opposition to a motion based upon improper service shall contain a copy of the proof of service, whether or not previously filed.

Plaintiff alleges that these motions must be denied because defendant failed to move within sixty days of service of the respective answers in 2003 and 2004. Neither were the motions made within sixty days of the plaintiff filing the pleadings in November 2010. They were made within thirty days of service of the Notice of Trial by the plaintiff on January 21, 2011. Service of the Notice of Trial is not one of the triggering events for applying the sixty day rule.

There is one major problem with this argument. The current section of CPLR §3211(e) being relied upon by plaintiff was enacted in 2005 with an effective date of January 1, 2006, which even in "No-Fault World" must be recognized as after the dates these actions were commenced. Plaintiff is claiming jurisdiction was obtained over each defendant by his defective use of CPLR §312-a service by mail because each defendant answered the complaint without providing the statutory acknowledgment. Plaintiff cannot now seriously be advocating that each defendant should be bound by a statute not in existence when plaintiff initially sought to commence these actions. In general statutes are construed as prospective, unless the language of the statutes either expressly or by necessary implication requires that it be given a retrospective construction [Statutes §51(b)]. There is nothing in the language of the law or the legislative history to conclude that the change to CPLR §3211(e) is to be applied retroactively.

There is a second problem with plaintiff's argument. CPLR §3211(e) requires plaintiff's opposition to the motion to "contain a copy of the proof of service, whether or not previously filed." No where in plaintiff's papers is there an affidavit of service of the summons and complaints which was originally made by mail only pursuant to CPLR §312-a. This exhibit is not part of the opposition to the motion, neither was it filed with the court when the pleadings were submitted in November 2010. Neither did plaintiffs attach copies of defendant's answer which was received shortly after the defective CPLR §312-a service was attempted. This would seem to lead to the conclusion that the opposition papers of plaintiff are fatally defective as not being in compliance with the statutory requirement.

But as noted above, this is the present rule. Because this action was attempted to be commenced before the current rules went into effect, the court is required to return to the law in effect in 2003 and 2004 when the plaintiff first attempted to start this litigation. At that time, a defense based on CPLR §3211(e)(8) that "the court has not jurisdiction of the person of the defendant" could be raised either in a pre-answer motion or be preserved in the answer and made at a later date. There was no sixty-day rule then such as exists since January 1, 2006. In fact, even if the defendant failed to move pursuant to CPLR §3211, this ground could be preserved and raised in a CPLR§3212 motion.

This court in Panicker v Northfield Savings Bank, 12 Misc.3d 1153(A), concluded that owing to how the Civil Court operates, the time frames set forth in CPLR §3212 for filing a summary judgment were not applicable in Civil Court because the statute specifically referenced the making of a motion "no later than one hundred twenty days after the filing of the note of issue" and the Civil Court does not use a "note of issue" it utilizes a "notice of trial." Presumably the legislature was aware of the different practice in these courts and chose not to have the statute apply to Civil Court as well.

The court also noted that in Civil Court litigation involving a self-represented plaintiff, there is no requirement to file a notice of trial, the case is immediately placed on the calendar, so what would be the triggering event? There is no rule requiring motions to be made within a certain number of days after the case appears on the court calendar for the first time. The court further pointed out that to have one rule for parties represented by counsel and another for self-represented individuals created a disparity in the procedure and in actuality could have the result of punishing persons represented by counsel by subjecting them to time limits not applicable to self-represented litigants.

Applying Panicker to the facts of this case, means that defendant's motion is timely made because there are no time limits in civil court for making motions no matter at what time plaintiffs began these lawsuits. Plaintiff cannot have it both ways. Plaintiff cannot claim that the cases were commenced timely in 2003 & 2004 but should have motion practice rules applied as they existed at the time the motions were made six years later.

C. Analysis of Motions:

Based on the foregoing, the court has concluded that defendant's motion to dismiss the complaint in each action is timely. Therefore, the issue is whether each of the plaintiff's actions should be dismissed because of defendant's allegation that process was not properly served when the actions were initially commenced so that the court failed to obtain personal jurisdiction over the defendant.

The purpose of the service of process is to inform a defendant that an action is pending, the nature of the action and what steps are to be taken to protect the defendant's legal rights. Although the plaintiff used service by mail to give notice, and compliance with that statute was not achieved because no "acknowledgment" of service was made by the defendant, plaintiff argues that each defendant actually did something better than acknowledge receipt; each defendant responded to the summons and complaint with a verified answer. Unfortunately, the plaintiff's position is not the state of the law.

Case law has held that the mere fact that a defendant answers a complaint without returning the acknowledgment of service form, does not waive any objections to that service if that objection was, as here, preserved in the answer [ Kostelanetz & Fink, LLP v. Hui Qun Zhao, 180 Misc.2d 847 (1999)]. The failure of the plaintiff to properly obtain jurisdiction cannot be waived when the defendant answers and preserves its defenses. Clearly, then, each defendant has preserved its right to challenge the service of the initial process in 2003 and 2004 and because the court has held there is no time limit for such motions in Civil Court, the court should have to address the issue of the defective CPLR §312-a service. However, there is one impediment to following that process. No where in defendant's motion papers is that raised as the ground for challenging the personal jurisdiction over each defendant. Defendants have not articulated as a ground to dismiss the complaints the failure of the plaintiffs to properly utilize CPLR §312-a as a method of service of process.

Instead, the motion papers seek to have these actions dismissed because plaintiff failed to serve the summons and complaint within 120 days of the filing of the summons and complaint in November 2010. At that time in 2010, plaintiff filed the 2003 & 2004 pleadings and answers and did not even attempt to re-serve any process. Defendant contends this failure to serve in 2010-2011 is not in compliance with the statute and makes the action defective. As noted above, defendant has referred to the wrong statute in making this application. The CPLR does not apply. Civil Court Act §411 does. This section which was effective September 8, 2005 provides:

(I)f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice extend the time for service.

If the court were to grant the defendant's motion, these cases would be dismissed as the six-year statute of limitations [CPLR §213] will have long ago run as the underlying medical services were, according to the complaints, rendered to the assignors between 1999 and 2003. There is no provision in the law to permit the court to extend the statute of limitations, as this litigation would not be eligible for a six-month extension as permitted in CPLR §205(a).

But the problem with this route, is that it is now the defendant who is seeking to apply a law not in effect when these actions were commenced. Defendant wants the 2005 statute applied to cases commenced in 2003 & 2004 before the law went into effect. It is not often that counsel gets to argue both sides of an issue in the same lawsuit. Even if neither counsel realized that is what they were doing.

Because this court has held that these actions were started under the old "commence by service" provisions of the Civil Court Act, perhaps an argument could be made that the old rule of permitting a nunc pro tunc late filing of proof of service should be considered as a possible solution to the procedural nightmare the plaintiff has created. The problem with this analysis is that the nunc pro tunc filing was permitted to remedy the defect of having failed to timely file proof service as required by the statute after service had been properly effectuated under either the CPLR or NYCCCA [ Pierno v Adams, 179 Misc.2d 381 (1999)]. At that time failure to file proof of service was not considered a jurisdictional defect so it could be remedied.

In other words, in those actions which had been commenced properly by service of process in conformity with the statute, personal jurisdiction was obtained over the defendant, so nunc pro tunc relief was available to correct the ministerial act of filing the proof of service. That is not the situation here. Here, personal jurisdiction was never obtained by the plaintiff under the service by mail provision utilized. Plaintiff had to engage a traditional method of service of process once the acknowledgment of service was not returned in order to have that avenue available. Plaintiff never did that.

Plaintiff, failed to follow the requirements of the method of service of process plaintiff selected to commence these actions. Plaintiff must bear the responsibility for his own actions. On the other hand, defendant has not properly challenged the defective process. The proper motion was to dismiss for failure to obtain jurisdiction in 2003 & 2004 when plaintiff failed to comply with CPLR §312-a. Defendant did not move on those grounds. Defendant moved on grounds arising in 2010 which are irrelevant. Although the Civil Court never properly obtained jurisdiction in 2003 & 2004, defendant has failed to properly challenge the defective service and now has waived its ability to do so.

The court notes that this litigation is almost ten years old, I hope the parties can get back their deposit from the "Staaten Restaurant" for the 10th Reunion of the parties, the assignors, the claims adjusters and counsel, as these cases are going to trial.

Conclusion:

Defendant's motion is denied. These matters are transferred to Part 56 for file. Six of them are scheduled for trial on December 2, 2013.This is a try or dismiss date. They will proceed to trial on that date. No further adjournments. The seventh case is scheduled for trial on May 5, 2014. The clerk is directed to advance that trial date to December 2, 2013 as well.

The foregoing constitutes the decision and order of the court.


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