N.Y. Wellness, PT, PC v. Plymouth Rock Assurance
| Decision Date | 29 September 2021 |
| Docket Number | 707280/19 |
| Citation | 155 N.Y.S.3d 301,73 Misc.3d 682 |
| Parties | NEW YORK WELLNESS, PT, PC a/a/o Fearon, Joy, Plaintiff, v. PLYMOUTH ROCK ASSURANCE, Defendant. |
| Court | New York Civil Court |
Plaintiff: Oleg Rybak, The Rybak Firm PLLC, 1810 Voorhies Ave, Suite 7, Brooklyn, NY 11235-3313, (718) 975-2035, orybak@rybakfirm.com
Defendant: Todd Hyman Brand Glick, Brand Glick & Brand, P.C., 600 Old Country Rd #440, Garden City, NY 11530, (516) 746-3500, Thyman@bgbfirm.com
Defendant, Plymouth Rock Assurance (hereinafter "Defendant, moves by Notice of Motion dated May 10, 2019, for an Order pursuant to CPLR §§ 3211(8) and 308 for an Order dismissing the instant action for improper service and for Summary Judgment in favor of defendant pursuant to CPLR § 3212 due to, inter alia , exhaustion of defendant's insurance coverage. As to the jurisdictional claim, it is defendant's contention that since Plaintiff, New York Wellness, PT, PC a/a/o Fearon, Joy (hereinafter "Plaintiff") served defendant via Federal Express, and not "personally," that no jurisdiction was obtained over defendant, as defendant never returned a signed acknowledgment of service as required by CPLR § 312. CPLR § 312 provides that such mail service is complete only upon the return of a signed acknowledgment.
Defendant's argument might typically be justified. In this instance, however, plaintiff submits the affidavit of its process service, David Lett, sworn to on January 21, 2021, and annexed as Exhibit "1", to the Affirmation in Opposition of Oleg Rybak, Esq., dated April 9, 2021. The affidavit of service, which is factually unrefuted by defendant, states that Mr. Lett served the Summons and Complaint upon Defendant on December 31, 2020 at 1:14 P.M., via Federal Express, with Tracking Number 782107818732, mailed to 901 Franklin Avenue, Garden City, NY 11530. It is defendant's position that this manner of service is insufficient as Defendant failed to return a signed Acknowledgment of Service. However, the Affidavit of Mr. Lett makes clear that when he attempted to personally serve the papers upon defendant, he was advised by "Jim W. Security Guard/Legal" that the office was closed due to COVID and that the Legal Department instructed that the Summons and Complaint be served "via Fed-Ex" to the address at 901 Franklin Avenue. Mr. Lett described the security guard as being a male, with brown skin and gray hair, approximately 55 years old, 5’ 10" tall and approximately 200 pounds. Defendant submits nothing to contradict either the attempted service upon "Jim W. Security Guard/Legal" or that the service policy at the time of service, as described by plaintiff, was in any way inaccurate.
On one hand, plaintiff's agent told the process server that the Summons and Complaint was to be served by Federal Express, and on the other hand, defendant, having received the Federal Express transmission, asserts that service was incomplete because defendant chose not to return a signed acknowledgment of service. The document was served in the manner in which the process server was directed to serve it. It is understandable that during the pandemic, with employees working remotely, defendant's counsel may have chosen to modify the manner in which it...
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