The failings of the former serve and file system – againJanuary 13, 2010

Globe Med. Care O.L.P.C. v Travelers Ins. Co., 2010 NY Slip Op 50020(U)(App. Term 1st Dept. 2010)

“Civil Court erred in dismissing this action by plaintiff to recover first-party no-fault benefits at the close of the trial on the ground that plaintiff failed to file proof of service of the summons and complaint on defendant. At no point in the action did defendant assert that plaintiff failed to file an affidavit of service and, therefore, defendant waived any objection on that ground (see generally Ballard v HSBC Bank USA, 6 NY3d 658 [2006]; Harris v Niagara Falls Bd. of Educ., 6 NY3d 155 [2006]). In any event, the failure to file an affidavit of service under the former commencement-by-service system that governed when this action was commenced (see former CCA 409) did not warrant dismissal of the action; rather, such failure was an irregularity that was correctable nunc pro tunc (see former CCA 411)….”

As a practitioner who started off in this practice during the  serve and file era, I would say that Travelers’ position in this matter was reasonable.  To explain, one of the tactics that Plaintiffs used in the serve and file era was to serve the carriers with summons and complaints, but never actually purchase an index number.  I was told that the purpose of this was to induce settlements and save everyone the fee of purchasing an index number.   The problem with tracking these cases is that you never knew if an index number was purchased until Plaintiff informed the defendant of the same.  You also could not call the court because title and name searches do not usually work in the realm of no-fault.  The only thing many defendants could do would be to wait to see if an index number somehow appeared.

What would many times happen is that about one year after the complaint was served, an index number magically appeared.  The amazing thing is that it seemed that plaintiffs were exempt from seeking nunc pro tunc relief on notice; rather, the clerks allowed the belated purchasing of index numbers.

The net effect of this was that files, which were closed and boxed up, had to be dragged from storage and reopened.  Reserves that were liquidated had to be set up again.  The whole system was the definition of chaos.

So it is against this backdrop from which one should evaluate this case.  I therefore think that Travelers’ position to dismiss the case based upon the failure to provide a timely affidavit of service or a prior application for nunc pro tunc relief was not unreasonable.  I think Justice Golia in J.R. Dugo, D.C., P.C. v. New York Cent. Mut. Ins. Co., 24 Misc.3d 68 (App. Term 2d Dept. 2009) made a really good argument in his dissent, which ties into my post.

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