Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co.

[*1] Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co. 2005 NY Slip Op 50210(U) Decided on February 18, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 18, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: February 18, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2004-567 K C

Ocean Diagnostic Imaging P.C., a/a/o John Johnson, Appellant,

against

Lumbermens Mutual Casualty Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Spodek, J.), entered March 4, 2004, which denied its motion for leave to enter a default judgment and granted defendant's cross motion for leave to serve a late answer.

Order unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider served the summons and complaint at an office located in Suffolk County although it had previously sent its claims forms to defendant's claims office located in Onondaga County. After plaintiff moved for leave to enter a default judgment, defendant cross-moved for leave to serve a late answer. Defendant stated that inasmuch as the Suffolk County office was not affiliated with it, defendant was unaware of the service of the summons and complaint and thus did not timely answer. In its reply papers, plaintiff, in attempting to establish that defendant maintained offices in both Onondaga County and at the Suffolk County address served, indicated that service of the summons and complaint occurred at an office utilized by Kemper Casualty Insurance Company. The court denied plaintiff's motion for leave to enter a default judgment and granted defendant's cross motion for leave to serve a late answer. Plaintiff appealed and we affirm. [*2]

Inasmuch as there has been no showing that Kemper Casualty Insurance Company is the same legal entity as the defendant, the service of the summons and complaint failed to obtain jurisdiction over defendant. Consequently, the court properly denied plaintiff's motion for leave to enter a default judgment since defendant did not have to demonstrate the existence of a meritorious defense (see Steele v Hempstead Pub Taxi, 305 AD2d 401, 402 [2003]; European Am. Bank & Trust Co. v Serota, 242 [*3]
AD2d 363 [1997]; Laurenzano v Laurenzano, 222 AD2d 560 [1995]). However, because defendant merely sought leave to serve a late answer and not dismissal of the action, the court properly granted defendant's cross motion.
Decision Date: February 18, 2005