Opinion
Index No. 654143/2019
05-13-2020
JN CONTEMPORARY ART LLC, Plaintiff, v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Allianz Global and Corporate Specialty, Interinsurance Agency Services, Pennsylvania National Mutual Insurance Company, and Penn National, Defendants.
White & McSpedon, P.C., New York, NY (Joseph H. McSpedon of counsel), for plaintiff. Goldberg Segalla LLP, New York, NY (Jennifer H. Feldscher and Christopher F. Lyon of counsel), for defendants Pennsylvania National Mutual Insurance Company and Penn National.
White & McSpedon, P.C., New York, NY (Joseph H. McSpedon of counsel), for plaintiff.
Goldberg Segalla LLP, New York, NY (Jennifer H. Feldscher and Christopher F. Lyon of counsel), for defendants Pennsylvania National Mutual Insurance Company and Penn National.
Gerald Lebovits, J.
In this declaratory-judgment action over insurance coverage, defendants Pennsylvania National Mutual Insurance Company and Penn National (together, "Penn National") move to dismiss under CPLR 3012 (b) for failure to serve the complaint timely. The motion is denied.
BACKGROUND
Plaintiff, JN Contemporary Art LLC, commenced this action on either July 19, 2019, or July 22, 2019, by filing a summons with notice. (See NYSCEF No. 1.) On July 26, 2019, plaintiff filed a complaint in the action. (See NYSCEF Docket Entry No. 3.) On July 29, 2019, JN Contemporary Art served the summons and complaint on Penn National (and on defendants American Automobile Insurance Company and Allianz Global and Corporate Specialty) by delivering copies of the summons and complaint to an authorized agent for service in the office of the State Superintendent of Financial Services, as permitted by Insurance Law 1212 § (b). (See NYSCEF No. 29.)
The electronic docket reflects that JN Contemporary Art originally filed the summons with notice on July 19, and filed a corrected summons with notice on July 22. The three-day gap between the two is immaterial here.
On reply, Penn National disputes that JN Contemporary Art served the complaint along with the summons, and provides a copy of a letter to Penn National from the office of the Superintendent of Financial Services indicating that only a summons with notice was served on July 29, 2019. (See NYSCEF Nos. 37, 38.) Shortly after the motion's submission date, JN Contemporary Art submitted a letter to this court attaching a further affidavit (plus supporting documentation) from its process server, which explained the circumstances under which he served the employee in the office of the Superintendent of Financial Services and attested to service of both the summons and complaint. (See NYSCEF Nos. 41-43.)
As Penn National points out, this court ordinarily does not consider surreplies or post-submission filings. In this case, though, because Penn National did not argue until its reply papers that JN Contemporary Art had served the summons but not the complaint on July 29, the court exercises its discretion to take into account JN Contemporary Art's post-submission filing. This court concludes that the initial affidavit of service, coupled with the post-submission affidavit and documentation, and also the undisputed fact that defendant American Automobile was served with both the summons and complaint, sufficiently establish that JN Contemporary Art served both summons and complaint on Penn National on July 29, 2019.
At some point between July 26, 2019, and August 22, 2019, the clerk's office of this court returned the complaint for correction. (See NYSCEF Docket Entry No. 3.) A corrected version of the complaint was not filed until January 14, 2020. (See id. ; see also NYSCEF Nos. 24, 26.) Although the precise nature of the defect in the July 26, 2019, version of the complaint is not identified in the record, only the first page of the complaint appears to have differed between that version of the complaint and the version filed on January 14, 2020. (See NYSCEF No. 3. )
That is, except for the first page, every page of the complaint filed on January 14, 2020, contains two NYSCEF document headers—one reflecting filing on July 26, 2019, and one reflecting filing on January 14, 2020. (Compare NYSCEF No. 3 at 1, with id. at 2-16.)
On August 22, 2019, counsel for Penn National entered an appearance in the action and served a demand for service of the complaint under CPLR 3012 (b). (NYSCEF Nos. 4-6.) And in November 2019, Penn National moved to dismiss on the ground that JN Contemporary Art had failed to serve it with a copy of the complaint within 20 days of its demand.
On reply in support of their motion, these defendants also suggest that neither Pennsylvania National Mutual Insurance Company and Penn National are proper legal entities, and therefore that the action is subject to dismissal as to them for failure to name the proper party defendant. That issue, however—on which this court expresses no opinion here—is not germane to the present motion under CPLR 3012 (b).
DISCUSSION
CPLR 3012 (b) provides that if a plaintiff does not serve its complaint with the summons, the defendant may make a pre-appearance "written demand for the complaint," at which point plaintiff must serve the complaint "within twenty days after service of the demand." If defendant does not serve a pre-appearance demand, "the complaint shall be served within twenty days after service of the notice of appearance." In either case, the "court upon motion may dismiss the action if service of the complaint is not made" within the required period.
Here, Penn National appeared and demanded the complaint on the same day, August 22, 2019. JN Contemporary Art undisputedly did not serve a copy of the complaint on Penn National within 20 days of August 22. This fact does not, however, mean that JN Contemporary Art's action should necessarily be dismissed as against Penn National.
As this court reads the record, JN Contemporary Art served Penn National in July 2019 with a version of the complaint that was nearly identical to the corrected complaint that JN Contemporary Art eventually filed during the pendency of this motion to dismiss. The only difference between the two versions was in the first page, which does not include any allegations against Penn National. And Penn National does not claim that it suffered prejudice from either the difference between the two version of the complaint or the delay in filing of the corrected complaint.
Indeed, the record reflects that defendant American Automobile Insurance Company was able to file an answer and counterclaims in response to the original version of the complaint served in July 2019. (See NYSCEF Nos. 8-13.)
To be sure, given the discrepancy in the first page, the July 2019 service of the original version of the complaint did not fully and properly discharge JN Contemporary Art's service obligations. This court concludes, however, that this defect in service was at most a technical irregularity that should be disregarded under CPLR 2001.
Penn National asserts that any service of the complaint in July 2019 was a nullity (and thus potentially an incurable defect for CPLR 2001 purposes) because that service preceded JN Contemporary Art's filing of the corrected complaint in January 2020. This court disagrees. The First Department has squarely held that serving a complaint before purchasing an index number and filing the complaint is a technical defect that can be corrected under CPLR 2001. (See United Servs. Auto. Ass'n v. Kungel , 72 AD3d 517, 517-518 [1st Dept 2011].)
Nor this analysis altered by the decision of the Court of Appeals in Goldenberg v. Westchester County Health Care Corp. (16 NY3d 323 [2011] ), as Penn National would have it. In Goldenberg , the plaintiff served the complaint but failed altogether within the applicable limitations period to purchase an index number or file the complaint. (See 16 NY3d at 325-326.) That is quite different from the situation here, where JN Contemporary Art undisputedly purchased an index number, filed a summons with notice, filed a complaint, and promptly served the complaint that it had filed. (See Grskovic v. Holmes , 111 AD3d 234, 241-242 [2d Dept 2014] [distinguishing Goldenberg ]; McCord v. Ghazal , 43 Misc 3d 767, 771-772 [Sup Ct, Kings County 2014] [same].) Thus, any defect in service resulting from JN Contemporary Art's having served a complaint that had been withdrawn for correction (and which differed on one page from the later-filed corrected complaint) is curable under CPLR 2001.
Accordingly, it is
ORDERED that Penn National's motion to dismiss under CPLR 3012 (b) is denied; and it is further
ORDERED that JN Contemporary Art is deemed to have properly served its complaint on Penn National, nunc pro tunc; and it is further
ORDERED that Penn National shall answer or otherwise respond to JN Contemporary Art's complaint filed January 14, 2020, within 40 days of service of a copy of this order with notice of its entry; and it is further
ORDERED that JN Contemporary Art shall serve a copy of this order with notice its of entry on all parties; and it is further
ORDERED that notice of entry may be served by mail or overnight delivery service, with JN Contemporary Art to e-file a copy of notice of entry (and accompanying affidavit(s) of service) on NYSCEF once filing of notices of entry in pending nonessential matters is again permitted by order of Chief Administrative Judge Lawrence Marks.