Parisien v. American Ind. Ins. Co.

Jules Francois Parisien, M.D., as Assignee of Reynoso-Herrera, Rosana, Respondent, against American Independent Ins. Co., Appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered November 30, 2017. The order, insofar as appealed from, denied the branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (8) and directed defendant to serve and file an answer within 30 days after service of the order with notice of entry. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking to dismiss the complaint is granted. In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (8). The branch of defendant's motion seeking to dismiss the complaint on the ground that plaintiff failed to properly serve defendant should have been granted. The record establishes that plaintiff mailed the summons and complaint to defendant by certified mail, return receipt requested. "However, [plaintiff] presented no evidence that [a copy] of the summons and complaint w[as] sent to the defendant[ ], by first-class mail, together with, inter alia, two copies of a statement of service by mail and acknowledgment of receipt, and that the signed acknowledgment of receipt [was] mailed or delivered to the plaintiff (see CPLR 312-a [a], [b]). In the absence of proper service, no personal jurisdiction was acquired over the defendant[ ]" [*2](Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; see Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, we note that even if plaintiff had properly served the summons and complaint upon defendant, defendant would otherwise still have been entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (8) for the reasons stated in Pierre J. Renelique, M.D., P.C., as Assignee of Vernizier, Jean Willy v American Ind. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-2405 K C], decided herewith). Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking to dismiss the complaint is granted. PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 25, 2019