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The Rogak Report: 06 June 2006 ** Civil Practice - Personal Service **

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  • Lawrence Rogak
    IN N.Y.C. CIVIL COURT SUITS, SERVICE UPON SUPERINTENDENT OF INSURANCE GIVES DEFENDANT 30 DAYS FROM FILING OF PROOF OF SERVICE TO SERVE ANSWER Linden
    Message 1 of 1 , Jun 6, 2006
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      IN N.Y.C. CIVIL COURT SUITS, SERVICE UPON SUPERINTENDENT OF INSURANCE
      GIVES DEFENDANT 30 DAYS FROM FILING OF PROOF OF SERVICE TO SERVE
      ANSWER

      Linden Chiropractic P.C. a/a/o Florine Joshua v State-Wide Ins Co.,
      2006 NY Slip Op 26214 (Civil Court, Kings County) (BATTAGLIA, j)
      (index no. 13917/05)

      Plaintiff moved for leave to enter judgment against defendant State-
      Wide Insurance Company, based upon Defendant's alleged failure to
      answer within the time prescribed by Civil Court Act §402. Defendant
      cross-moved for an order compelling Plaintiff to accept its Answer as
      timely.

      Plaintiff served its Summons and Complaint by delivering copies to
      the Superintendent of Insurance at 25 Beaver Street, New York City,
      on February 17, 2005, and filed proof of service on February 22.
      Defendant was notified by letter dated February 28 from the
      Superintendent that the papers had been received on February 17.
      Defendant delivered its Verified Answer to Plaintiff on March 23, but
      Plaintiff returned it on April 6 with a letter rejecting it as
      untimely.

      Plaintiff contended that service was complete on February 17, and
      that Defendant's answer was due no later than March 9. Plaintiff
      relied on Civil Court Act §§ 410(a) and 402(a). Section 410(a)
      provides that service is complete "immediately upon delivery to
      defendant, where §402(a) is applicable." Section 402(a) provides
      that "if the summons is personally delivered to the defendant within
      the city of New York, it shall require him to appear and answer
      within twenty days after its service."

      "As Plaintiff sees it, the Summons and Verified Complaint
      were 'personally delivered to the defendant within the city of New
      York' on February 17 when the papers were delivered to the
      Superintendent of Insurance, and that, therefore, service was
      complete on that date, and Defendant's answer was due twenty days
      thereafter, March 9."

      Defendant maintained that service was not complete until February 22,
      and that its answer was not due until March 23. Defendant relied on
      Civil Court Act §§ 410(b) and 402(b). Section 410(b) provides that
      service is complete "upon the filing of proof of service, where §402
      (b) is applicable." Section 402(b) provides that "if the summons is
      served by any means other than personal delivery to the defendant
      within the city of New York, it shall provide that defendant must
      appear and answer within thirty days after proof of service is filed
      with the clerk."

      "As Defendant sees it, the Summons and Verified Complaint were served
      by a means 'other than personal delivery to the defendant within the
      city of New York', and, therefore, service was not complete until
      proof of service was filed on February 22, and Defendant's answer was
      not due until thirty days thereafter, March 23."

      "Resolution turns, then, on whether delivery of the papers to the
      Superintendent's office in New York City constitutes "personal[]
      deliver[y] to the defendant within the city of New York" for purposes
      of Civil Court Act §402. The Court concludes that it does not."

      "The Court notes in the first instance that, in their respective
      papers, both parties tend, at least on occasion, to use the
      terms 'personal delivery' and 'personal service' as if they were the
      same thing, when they are not. The difference is most obvious from a
      review of CPLR 308, which prescribes the methods of 'personal
      service' upon a natural person. Subsections 308(1), (2), and (3) each
      describe methods that require 'delivering the summons', whereas
      subsection 308(4) describes affixation and mailing, and subsection 308
      (5) permits service 'in such manner as the court...directs.'"

      "Personal delivery means in-hand delivery," held the Court, citing
      National Bank of Northern New York v Grasso, 79 AD2d 871, 871 [4th
      Dept 1980], "and, so, for example, service by affixation and mailing
      as described in CPLR 308(4) is not 'personal delivery'. There can be
      no question that 'personal delivery' in the sense of 'in-hand
      delivery' was made here, because the Summons and Verified Complaint
      were delivered in hand to a representative of the Superintendent. Nor
      can there be any question that the delivery took place 'within the
      city of New York.' The only question, at least as disputed by the
      parties, is whether there was 'personal delivery to the defendant
      within the city of New York.' The parties have not cited, and the
      Court has not found, any decision on point."

      "Again, the issue is not whether there has been 'personal service'
      made on Defendant in the City. Whether or not Defendant is authorized
      to do business in this State, personal service was made when the
      papers were delivered to 25 Beaver Street. (See Insurance Law §§
      1212, 1213.) The difference between 'personal service' and 'personal
      delivery' is important not simply because the words are different,
      but because of the different purposes for which they are
      used. 'Personal service' establishes the power of the court over the
      defendant; 'personal delivery' in this instance governs the period of
      time in which the defendant must make its answer."

      "The meaning of the words 'personal delivery to the defendant', as
      used in Civil Court Act § 402 (a) and (b), seems rather clear and
      consistent with the logic of §§ 402 and 410 of the Act. 'Personal
      delivery to the defendant' means in-hand delivery to the defendant
      itself, and not to someone else as agent for, or otherwise on behalf
      of, the defendant. When the papers are delivered in-hand to the
      defendant, there is reason to consider service 'complete' (see CCA
      §410[a]), and to require the defendant to appear and answer within
      the shorter statutory time period, 20 rather than 30 days. But, when
      the papers are delivered, even in-hand, to someone else for
      subsequent delivery to the defendant, there is reason to consider
      service 'complete' upon filing of proof of service, an event more
      easily determined than actual delivery to the defendant, and allowing
      the defendant the longer statutory time period in which to appear and
      answer, 30 rather than 20 days."

      "This apparent meaning is also consistent with CPLR 317, a provision
      that addresses related subject matter. The 'parallel provisions' of
      Civil Court Act §2102 and CPLR 101 make clear that 'the CPLR is to
      govern civil practice and procedure...to the extent that it is not
      inconsistent with the procedure of the individual courts as described
      in their court acts.' The provisions of the CPLR are sufficiently
      related to those of the Civil Court Act that they should be
      considered virtually the same statute for purposes of the rule of
      statutory construction that looks to all the provisions of the
      statute as an aid to the meaning of any one."

      "CPLR 317 allows a defendant who has not appeared in an action within
      the required period, and who was 'served with a summons other than by
      personal delivery to him or to his agent for service designated under
      rule 318', to defend the action upon findings by the court that the
      defendant 'did not personally receive notice of the summons in time
      to defend and has a meritorious defense.' The relationship of CPLR
      317 to Civil Court Act § 402 is obvious, in that it in effect
      establishes justification for failure to appear as required by § 402
      when the defendant does not 'personally receive notice of the summons
      in time' because of service 'other than by personal delivery to him
      or his agent.'"

      "On its face, CPLR 317 provides some evidence of the intended meaning
      of Civil Court Act § 402 by making a distinction between in-hand
      delivery to the defendant itself and in-hand delivery to a designated
      agent. Civil Court Act § 402 makes no such distinction, speaking only
      of delivery 'to the defendant'. And, for purposes of CPLR 317, an
      individual who is not served pursuant to CPLR 308(1) or (3) even when
      service is made by 'delivering the summons...to a person of suitable
      age and discretion' pursuant to CPLR 308(2) may obtain relief from
      its failure to timely answer. The implication is clear; 'personal
      delivery to him', the defendant, does not include personal delivery
      to someone else for subsequent delivery to the defendant."

      "Even if, however, the phrase 'personal delivery to the defendant' as
      used in Civil Court Act §402 is understood to mean 'personal
      delivery...to the defendant or to his agent for service designated
      under rule 318', Plaintiff's contention must fail. It is well-
      established that 'service on a corporation through delivery of
      process to the Secretary of State is not personal delivery' to the
      corporation or to an agent designated for service under CPLR 318.'"

      "Plaintiff attempts to distinguish this authority by limiting it to
      service on the Secretary of State, rather than the Superintendent of
      Insurance. Its contention, however, is somewhat undermined by
      Appellate Term's decision in Deepdale General Hospital v American
      Colonial Ins. Co. (144 Misc 2d at 918.) The court stated that, under
      § 410 of the UDCA, which is identical to Civil Court Act §410 in its
      reference to §402, service on an insurer by delivery to the
      Superintendent of Insurance is not complete until proof of service is
      filed."

      "The provisions of Uniform District Court Act §402, however, are
      different than those of Civil Court Act §402. Section 402(a) of the
      UDCA requires an answer within 20 days after service if the summons
      is 'personally served within the county on a natural person pursuant
      to CPLR §308(1), or on a corporation pursuant to CPLR §311(1)(sic).'
      Service pursuant to CPLR 308(1) is made 'by delivering the
      summons...to the person to be served.' Service pursuant to CPLR 311(a)
      (1) is made by 'delivering the summons...to an officer or assistant
      cashier or to any other agent authorized by appointment or by law to
      receive service.' Section 402(b) of the UDCA requires an answer
      within 30 days after proof of service is filed if the summons
      is 'served otherwise than as designated in subdivision (a).' Note
      that § 402 of the Uniform District Court Act speaks of 'personal
      service', whereas § 402 of the Civil Court Act speaks of 'personal
      delivery.'"

      "The provisions of Uniform District Court Act § 402(a) support this
      Court's interpretation of Civil Court Act § 402(a) to the extent
      that, when service is made on an individual, the shorter 20-day
      period for answer is limited to personal delivery to the defendant.
      On the other hand, when service is made on a corporation, the 20-day
      period for answer also applies when delivery is made 'to any...agent
      authorized by...law to receive service.' That would appear to include
      the Superintendent of Insurance. It is not clear why Appellate Term
      apparently concluded that, when service is made on the Superintendent
      of Insurance, 'service is not complete until the summons is filed
      with the court.'"

      "Finally, there is CPLR 320, which prescribes the time for the
      defendant's appearance in Supreme Court. Appearance is generally
      required 'within twenty days after service of the summons, except
      that if the summons was served on the defendant by delivering it to
      an official of the state authorized to receive service on his
      behalf..., the appearance shall be made within thirty days after
      service is complete.' (CPLR 320[a].) The logic of this provision,
      allowing a longer time when service is made by delivery to a state
      official than when service is made to the defendant itself, is
      obviously consistent with this Court's reading of Civil Court Act
      §402."

      "This Court concludes that 'personal delivery to the defendant within
      the city of New York', as used in the Civil Court Act §402, means
      personal delivery to the defendant itself within the City, and not to
      the office of a statutory agent; and that, therefore, service based
      on delivery to a statutory agent is complete when proof of service is
      filed, so that the defendant's answer is not due until 30 days after
      filing. (See Civil Court Act §§ 402, 410.) If the result would be
      different under the Uniform District Court Act, it might be explained
      by the lynchpin of personal service in that statute, as compared to
      personal delivery in the Civil Court Act, but is insufficient in any
      event to overcome the plain meaning of § 402 of the Civil Court Act
      and the other evidence of legislative intent described above."

      "The Defendant's Verified Answer was, therefore, timely served."

      Comment: Note the important distinction between suits venued in the
      Civil Court of the City of New York, and those venued in the District
      Courts of Nassau and Suffolk County. In the latter, service upon the
      Superintendent of Insurance may still be considered "personal
      service," giving the defendant only 20 days to answer.

      Larry Rogak
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