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The Rogak Report: 26 December 2003

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    WHERE NO-FAULT PLAINTIFF SERVES SUMMONS, DEFAULT NOTICE AND DEFAULT MOTION TO DIFFERENT ADDRESSES, DEFAULT IS DENIED Tauz v. Allstate Ins. Co., 2003 WL
    Message 1 of 1 , Dec 26, 2003
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      WHERE NO-FAULT PLAINTIFF SERVES SUMMONS, DEFAULT NOTICE AND DEFAULT
      MOTION TO DIFFERENT ADDRESSES, DEFAULT IS DENIED

      Tauz v. Allstate Ins. Co., 2003 WL 23009184 (District Court, Nassau
      County) (FAIRGRIEVE, j.)

      In this no-fault benefits suit, plaintiff moved for a default
      judgment against Allstate. The Motion was denied and the lawsuit was
      dismissed, for the following reasons.

      Plaintiff Carlos R. Tauz, L.M.T. as assignee of Juan E. Lucero sought
      to recover the sum of $6,397.59 for medical services provided to Mr.
      Lucero. The affidavit of service stated that Allstate was served with
      the summons and complaint on August 27, 2003 at 10:00 a.m. in Suffolk
      County at 888 Veterans Memorial Highway, Hauppauge, New York. A
      letter dated October 1, 2003 was sent to Allstate at a Nassau County
      address at 60 Charles Lindbergh Boulevard, Uniondale, New York 11553,
      stating that plaintiff would seek a default judgment against Allstate
      unless an answer was served within 10 days. The second page of the
      notice of motion provides that Allstate is located at 60 Charles
      Lindbergh Boulevard, Uniondale, New York 11553. However, the
      affidavit of service concerning the application for a default
      judgment was mailed to Allstate at a different Nassau County address,
      1111 Marcus Avenue, Lake Success, New York.

      "Service upon Allstate in Suffolk County is prohibited under UDCA §§
      403 and 404 where Allstate has a Nassau County office," held the
      Court.

      "This Court has seen numerous cases involving no-fault claims where
      service is made at one location and other types of mailings are sent
      to a different location which in the opinion of the Court is a
      deliberate attempt to cause confusion on a large insurance company
      with the result that a default judgment may be entered. This Court
      will no longer tolerate this gamesmanship and will dismiss actions or
      refuse to enter default judgments when the law is not followed."

      UDCA § 403 states: Service of summons shall be made in the manner
      prescribed in supreme court practice, including the optional method
      of service by mail authorized by CPLR 312-a, but it shall be made
      only within the county unless service beyond the county be authorized
      by this act or by such other provision of law, other than the CPLR,
      as expressly applies to courts of limited jurisdiction or to all
      courts of the state."

      Pursuant to UDCA § 403, service must be made within Nassau County
      unless service is authorized by some other provision of law such as
      UDCA § 404, which states: "(d) Corporation or association. If
      service of the summons cannot be effected by personal delivery
      thereof within the county so as to acquire in personam jurisdiction
      of a corporation or unincorporated association, such corporation or
      association shall be deemed a non-resident of the county for purposes
      of this section."

      "It is clear from reading UDCA § 404(d) that a corporation can only
      be served outside Nassau County if it can't be served by personal
      delivery within Nassau County. Plaintiff has demonstrated to the
      court that Allstate has at least two Nassau locations. This Court has
      already ruled that service of a summons and complaint upon an insurer
      outside Nassau County when it has an office in Nassau County for
      personal delivery of pleadings is ineffective to confer jurisdiction
      upon the defendant insurer. See Beverly Hills, P.C. v. AIG Insurance
      Company, 194 Misc.2d 533, 755 N.Y.S.2d 568 (Nassau Ct. Dist.
      Ct.2003)."

      In this case, the summons was served outside the territorial
      jurisdiction of this court. This can be validly done only under
      certain statutorily prescribed circumstances.

      "A summons served outside the territorial jurisdiction of this court
      is void except as specifically provided for (UDCA § 403). Even an
      appearance by defendant will not confer jurisdiction where personal
      jurisdiction is based solely upon § 404 of the UDCA if the cause does
      not, in fact, arise out of an act enumerated therein. It is incumbent
      upon the plaintiff to demonstrate that this court, at least prima
      facie, has jurisdiction here and that service outside the county was
      properly authorized," held the Court.

      "In the case at bar," held the Court, "no justification exists to
      allow service upon Allstate in Suffolk when Allstate has two offices
      located in Nassau County by the plaintiff's own admission. This court
      will not permit this type of practice to continue whereby service is
      made outside Nassau County and other types of notices are sent to
      different offices within Nassau with the apparent attempt to cause
      confusion with the defendant so that a default judgment may result.
      The submission of a motion does not impose upon the court a
      ministerial duty to grant the relief sought. This court has the
      inherent power not to enter judgment (even on default) where
      jurisdiction is lacking. This court is dismissing the plaintiff's
      action without prejudice."
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