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Javoroski v. SelectQuote Insurance Svc, Inc.

Supreme Court, Albany County

February 21, 2017

Janeen A. Javoroski, Plaintiff,
v.
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 counsel)

          Mound Cotton Wollan & Greengrass LLP Attorneys for Defendants (Kate Elizabeth DiGeronimo and Jodi S. Tesser, of counsel)

          RICHARD M. PLATKIN A.J.S.C.

         Defendants 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.

         On 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.

         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.

         Pursuant 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 [1985]; 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]).

         Plaintiff's 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".

         Counsel 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.

         For 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.

         Defendants 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 deadline".

         Even if 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 2009]).

         In any 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 904).

         Plaintiff 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. [1] 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 [1997]; see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 N.Y.3d 152, 157-158 [2006]), [2] 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 [2014]). 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 ...


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