Janeen A. Javoroski, Plaintiff,
SelectQuote Insurance Svc, Inc., SelectQuote Insurance Agency, SelectQuote Insurance Services, SelectQuote Life Insurance Services, SelectQuote Insurance Services, Inc., Charan J. Singh, Feingold & Scott, Ltd. and Robert Bland, Defendants.
Pemberton and Briggs Attorneys for Plaintiff (Paul Briggs, of
Cotton Wollan & Greengrass LLP Attorneys for Defendants
(Kate Elizabeth DiGeronimo and Jodi S. Tesser, of counsel)
RICHARD M. PLATKIN A.J.S.C.
SelectQuote Insurance Services and Charan J. Singh move for
dismissal of this action pursuant to CPLR 3012 (b), based
upon plaintiff's failure to timely file and serve a
complaint following defendants' demand. Plaintiff
cross-moves for an extension of time to serve her complaint.
August 18, 2016, plaintiff Janeen A. Javoroski served
defendants SelectQuote Insurance Svc, Inc., SelectQuote
Insurance Agency, SelectQuote Insurance Services, SelectQuote
Life Insurance Services, SelectQuote Insurance Services,
Inc., and Charan J. Singh with a summons with notice through
service upon the Secretary of State (Business Corporation Law
§ 306). The notice indicated that plaintiff would be
alleging a claim of "breach of contract for failure of
William Penn Life Insurance Company of New York to pay life
insurance proceeds under [a] policy... as a result of the
August 7, 2013 death of Dennis G. Javoroski", who was
plaintiff's husband, as well as a claim of negligence
against "insurance agent Charan Singh" and the
named SelectQuote defendants.
SelectQuote Insurance Services and Singh (hereinafter
"defendants") filed a notice of appearance on
September 27, 2016 and demanded service of the complaint.
Based on plaintiff's failure to timely serve a complaint,
defendants now move to dismiss the action pursuant to CPLR
3012 (b). Plaintiff cross-moves for an extension of time to
complete service, claiming that she has both a reasonable
excuse for her delay and a meritorious claim.
to CPLR 3012 (b), plaintiff was required to serve her
complaint within twenty days after service of defendants'
demand. Plaintiff concedes that she did not comply with that
deadline. Thus, to successfully oppose defendants'
motion, plaintiff is required to show that she has both a
reasonable excuse for the delay and a meritorious cause of
action (see CPLR 3012 [d]; Kel Mgt. Corp. v
Rogers & Wells, 64 N.Y.2d 904, 905 ; Gear
UP, Inc. v City of New York, 140 A.D.3d 515, 515 [1st
Dept 2016]; Amodeo v Gellert and Quartaro, P.C., 26
A.D.3d 705, 706 [3d Dept 2006]).
counsel acknowledges that defendants' notice of
appearance and demand for the complaint was received on
October 3, 2016, but plaintiff did not attempt to serve a
complaint until December 14, 2016. Plaintiff's attorney
explains that the delay was due, in part, to a need to
conduct further research to ascertain the identity of the
"correct defendant or defendants". He states that
his "[e]xtensive research" disclosed five different
entities that included "SelectQuote" in their names
and that "Charan J. Singh was affiliated with one or all
of the SelectQuote entities".
further explains that, after receiving defendants' notice
of appearance, he "renewed" his research so that he
could "ascertain whether the appearing [SelectQuote]
entity" was, in fact, the entity that sold the life
insurance policy to plaintiff's husband. "In doing
so, [he] removed the notice of appearance from the incoming
mail resulting in the 20 day notice deadline not being
diaried." According to plaintiff's attorney, this
law office failure was not discovered until he received
defendants' motion to dismiss.
their part, defendants reject plaintiff's
characterization of the delay as "short". They note
that the complaint was served 79 days after defendants'
demand and 118 days after service of the summons with notice.
Defendants also submit proof that their moving papers were
delivered to plaintiff on November 29, 2016, but the
attempted service of the complaint did not occur for an
additional two weeks.
also argue that the excuse for the delay proffered by
plaintiff's attorney - that research was required to find
the "correct" defendant - is not reasonable.
According to defendants, the notice of appearance and demand
for a complaint "plainly identifies SelectQuote
Insurance Services as the correct entity name, which negated
any need for research into its name". Defendants also
challenge the claim of plaintiff's counsel that
"lingering doubt" about the identify of the proper
defendants prevented him from timely filing and serving a
complaint, observing that the complaint served in December
2016 "pleads identical, repetitive allegations against
all five iterations of SelectQuote's name listed in the
caption" of the summons. As such, defendants argue, it
"was not necessary for the plaintiff to identify the
correct corporate name to prepare the Complaint, and any
confusion over SelectQuote's name is simply a pretext for
the plaintiff's inexplicable failure to meet the
plaintiff's attorney had a legitimate need to research
the name of the correct corporate entity, it did not absolve
plaintiff of the obligation to serve a duly demanded
complaint within the time allowed by statute. Further, as
defendants point out, the complaint that plaintiff ultimately
attempted to serve was not limited to allegations against the
"correct" SelectQuote defendant. Thus, this does
not seem to be a case where plaintiff lacked sufficient
information at the time when the summons was served to assert
the general allegations that eventually were put into her
complaint (Trudeau v Ford, 60 A.D.3d 1186');">60 A.D.3d 1186 [3d Dept
event, even assuming that plaintiff has proffered a
satisfactory excuse for the delay in serving the complaint,
it is apparent that plaintiff's affidavit of merit falls
well short of containing "evidentiary facts sufficient
to establish a prima facie case" of negligence against
the named defendants (Kel Mgt. Corp., 65 N.Y.2d at
complains that defendants were negligent in selling her
husband a new policy of insurance after his original policy
lapsed for non-payment, rather than advising him to seek
reinstatement of the lapsed policy.  However, it is well
settled that the duty of an insurance broker or agent is
limited to "obtain[ing] requested coverage for their
clients within a reasonable time or inform[ing] the client of
the inability to do so" (Murphy v Kuhn, 90
N.Y.2d 266, 270 ; see Hoffend & Sons, Inc. v
Rose & Kiernan, Inc., 7 N.Y.3d 152, 157-158 ),
and agents and brokers generally are under no obligation to
advise their clients to obtain additional or different
coverage (see Voss v Netherlands Ins. Co., 22 N.Y.3d
728, 735 ). Plaintiff does not allege that defendants
failed to obtain the coverage requested by her late husband,
and defendants were under no common-law duty to offer advice