N.Y. Wellness, PT, PC v. Plymouth Rock Assurance, 707280/19

CourtNew York Civil Court
Writing for the CourtJill R. Epstein, J.
Citation155 N.Y.S.3d 301,73 Misc.3d 682
Decision Date29 September 2021
Docket Number707280/19
Parties NEW YORK WELLNESS, PT, PC a/a/o Fearon, Joy, Plaintiff, v. PLYMOUTH ROCK ASSURANCE, Defendant.

73 Misc.3d 682
155 N.Y.S.3d 301

NEW YORK WELLNESS, PT, PC a/a/o Fearon, Joy, Plaintiff,
v.
PLYMOUTH ROCK ASSURANCE, Defendant.

707280/19

Civil Court, City of New York, Kings County.

Decided on September 29, 2021


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

Jill R. Epstein, J.

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...

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