Chiropractic v. State-Wide Insurance

12 Misc. 3d 1010
CourtNew York Supreme Court
DecidedJune 2, 2006
StatusPublished

This text of 12 Misc. 3d 1010 (Chiropractic v. State-Wide Insurance) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chiropractic v. State-Wide Insurance, 12 Misc. 3d 1010 (N.Y. Super. Ct. 2006).

Opinion

OPINION OF THE COURT

Jack M. Battaglia, J.

Plaintiff Linden Chiropractic, EC. seeks leave to enter judgment on its verified complaint against defendant State-Wide Insurance Company, based upon defendant’s alleged failure to answer within the time prescribed by New York City Civil Court Act § 402. Defendant has cross-moved for an order compelling plaintiff to accept its verified answer as timely. For reasons that will appear, defendant’s motion is granted, and plaintiffs motion is denied.

Plaintiff served its summons and verified 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 contends that service was complete on February 17, and that defendant’s answer was due no later than March 9. Plaintiff relies on New York City 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 “[i]f 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.” (Emphasis added.) 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, therefore, service was complete on that date, and defendant’s answer was due 20 days thereafter, March 9.

Defendant maintains that service was not complete until February 22, and that its answer was not due until March 23. De[1012]*1012fendant relies on New York City 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 “[i]f the summons is served by any means other than personal delivery to the defendant within the city of New York, it shall provide that the defendant must appear and answer within thirty days after proof of service is filed with the clerk.” (Emphasis added.) 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 30 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 New York City 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. Subdivisions (1), (2), and (3) of CPLR 308 each describe methods that require “delivering the summons,” whereas subdivision (4) describes affixation and mailing, and subdivision (5) permits service “in such manner as the court. . . directs.”

“Personal delivery means ‘in-hand delivery’ ” (National Bank of N. N.Y. v Grasso, 79 AD2d 871, 871 [4th Dept 1980]; see also Fleetwood Park Corp. v derrick Waterproofing Co., 203 AD2d 238, 239 [2d Dept 1994]), 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 [1013]*1013is 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. (See, e.g., Deepdale Gen. Hosp. v American Colonial Ins. Co., 144 Misc 2d 917, 918 [App Term, 2d Dept 1989].)

The meaning of the words “personal ] deliver[y] to the defendant,” as used in New York City Civil Court Act § 402 (a) and (b), seems rather clear and consistent with the logic of sections 402 and 410 of the Act. “Personal[ ] deliverty] 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 NY City Civ Ct Act § 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. (See also CPLR 320 [a].)

This apparent meaning is also consistent with CPLR 317, a provision that addresses related subject matter. The “parallel provision[s]” of New York City 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.” (See Ling Ling Yung v County of Nassau, 77 NY2d 568, 572 [1991].) The provisions of the CPLR are sufficiently related to those of the New York City 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. (See McKinney’s Cons Laws of NY, Book 1, Statutes § 97.)

CPLR 317 allows a defendant who has not appeared in an action within the required period, and who was “served with a [1014]

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Bluebook (online)
12 Misc. 3d 1010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chiropractic-v-state-wide-insurance-nysupct-2006.