Default denied based upon quirk of NYCCCA 403 and 404May 6, 2017

S & R Med., P.C. v Allstate Prop. & Cas. Ins. Co., 2017 NY Slip Op 50551(U)(App. Term 2d Dept. 2017).

I always knew this quirk existed.  I have not seen it utilized, but when you are in default and do not have a leg to stand on, you hunt down procedural hammers that have grown dusty.

“Section 403 of the New York City Civil Court Act provides that service “shall be made only within the city of New York unless service beyond the city be authorized by this act or by such other provision of law, other than the CPLR, as expressly applies to courts of limited jurisdiction or to all courts of the state.” Plaintiff appears to be arguing that defendant is not a resident of the City and, thus, to be implicitly arguing that the service was valid pursuant to CCA 404, which provides for service outside the City upon nonresidents in certain enumerated instances. However, defendant’s position is that it is a [*2]resident of the City of New York, in which case, pursuant to CCA 403, service was invalid. As neither plaintiff’s complaint nor its motion papers set forth any facts allowing for jurisdiction to be acquired over defendant by service outside the City of New York pursuant to CCA 404 (see All-State Credit Corp. v Defendants Listed in 669 Default Judgments, 61 Misc 2d 677 [App Term, 2d Dept, 9th & 10th Jud Dists 1970]), plaintiff has failed to show that service had been validly effectuated, and, thus, plaintiff failed to establish its entitlement to a default judgment.

Defendant is correct here.

Allstate has claims offices in the City and elsewhere.  Thus, service must be made at one of the NYC claims offices.  The way around this is to cough up $40 and to serve pursuant to Ins Law 1212.  Ins Law 1212(b), last sentence states: “Service of process so made shall be deemed to have been made within the territorial jurisdiction of any court in this state.”  Therefore service would be as if it was made on one of Allstate’s New York city offices.