Deepdale General Hospital v. American Colonial Insurance

Appellate Terms of the Supreme Court of New York

Deepdale General Hospital v. American Colonial Insurance

144 Misc. 2d 917, 550 N.Y.S.2d 526, 1989 N.Y. Misc. LEXIS 838

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 19, 1989

StatusPublished

Cited by4 cases

This text of 144 Misc. 2d 917 (Deepdale General Hospital v. American Colonial Insurance) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Deepdale General Hospital v. American Colonial Insurance, 144 Misc. 2d 917, 550 N.Y.S.2d 526, 1989 N.Y. Misc. LEXIS 838 (N.Y. Ct. App. 1989).

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Opinion

[918]*918OPINION OF THE COURT

Memorandum.

Judgment unanimously modified by increasing the recovery to $518.63, and, as so modified, affirmed, with $10 costs to plaintiff.

In this action for no-fault first-party benefits, the required forms were sent to the defendant carrier on March 2, 1988. The action herein was commenced by the service of a summons and complaint on the Superintendent of Insurance on April 18, 1988. Defendant paid the bill plus interest on April 26th and the summons and complaint were filed with the court on May 16, 1988. The lower court held that since the summons and complaint were not filed until after payment of the claim, that service was not "completed” until that time (see, UDCA 410 [b]) and therefore payment of the claim was made prior to the "commencement” of this action. We disagree.

Section 1212 of the Insurance Law provides that the Superintendent of Insurance is designated as the attorney for an insurer doing business in this State and that said Superintendent is authorized to accept process for the insurer. UDCA 2102 provides that provisions as to practice and procedure of the CPLR are applicable to the District Court. CPLR 304 provides that an "action is commenced and jurisdiction [is] acquired by service of a summons” (emphasis added). While UDCA 410 (b) provides that service is not complete until the summons is filed with the court, said section merely sets forth the time when a defendant must answer the summons and not to when the action is "commenced” (see, Siegel, Commentary on Revision, McKinney’s Cons Laws of NY, Book 29A, CCA 410, at 116). Therefore, payment of this claim was not made prior to the commencement of this action. Consequently, the provisions of 11 NYCRR 65.16 (c) (8) (iv) apply to the establishment of counsel fees, and under this regulation, the fee is 20% of the amount of first-party benefits plus interest. That amounts to $518.63 and judgment in that sum should be entered in plaintiff’s favor.

DiPaola, P. J., Geiler and Collins, JJ., concur.

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[918]*918OPINION OF THE COURT

Memorandum.

Judgment unanimously modified by increasing the recovery to $518.63, and, as so modified, affirmed, with $10 costs to plaintiff.

In this action for no-fault first-party benefits, the required forms were sent to the defendant carrier on March 2, 1988. The action herein was commenced by the service of a summons and complaint on the Superintendent of Insurance on April 18, 1988. Defendant paid the bill plus interest on April 26th and the summons and complaint were filed with the court on May 16, 1988. The lower court held that since the summons and complaint were not filed until after payment of the claim, that service was not "completed” until that time (see, UDCA 410 [b]) and therefore payment of the claim was made prior to the "commencement” of this action. We disagree.

Section 1212 of the Insurance Law provides that the Superintendent of Insurance is designated as the attorney for an insurer doing business in this State and that said Superintendent is authorized to accept process for the insurer. UDCA 2102 provides that provisions as to practice and procedure of the CPLR are applicable to the District Court. CPLR 304 provides that an "action is commenced and jurisdiction [is] acquired by service of a summons” (emphasis added). While UDCA 410 (b) provides that service is not complete until the summons is filed with the court, said section merely sets forth the time when a defendant must answer the summons and not to when the action is "commenced” (see, Siegel, Commentary on Revision, McKinney’s Cons Laws of NY, Book 29A, CCA 410, at 116). Therefore, payment of this claim was not made prior to the commencement of this action. Consequently, the provisions of 11 NYCRR 65.16 (c) (8) (iv) apply to the establishment of counsel fees, and under this regulation, the fee is 20% of the amount of first-party benefits plus interest. That amounts to $518.63 and judgment in that sum should be entered in plaintiff’s favor.

DiPaola, P. J., Geiler and Collins, JJ., concur.

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144 Misc. 2d 917, 550 N.Y.S.2d 526, 1989 N.Y. Misc. LEXIS 838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deepdale-general-hospital-v-american-colonial-insurance-nyappterm-1989.

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