Dyckman Med. Diagnostic/Treatment, P.C. v Granite State Ins. Co., 2014 NY Slip Op 51026(U)(App. Term 2d Dept. 2014)
(1) “A defendant seeking summary judgment dismissing a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action had expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009];Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). ”
(2) “defendant annexed an affidavit by a litigation specialist employed by a company that administers claims for it, which company is located in Albany, New York, who merely stated, based on a review of defendant’s records, that defendant had never received a summons and complaint in the instant action prior to September 26, 2008. ”
(3) “As an affidavit of a process server constitutes prima facie evidence of proper service, defendant’s mere conclusory denial of receipt of that summons and complaint, made by an employee of a company other than defendant and not by someone employed at the New York City office where service was effectuated, was insufficient to rebut plaintiff’s prima facie proof of proper service”
(4) “It should be noted that defendant’s submission of an answer in 2008 and its service of discovery demands acted as a waiver of any right it may have had to dismissal, pursuant to CPLR 3215 (c), of the 2003 complaint, to which complaint defendant allegedly had never previously served an answer”
So much went wrong for Granite State. As some might say, they could not get out of their own way on this one.
