Opinion
2013-07-11
Shirley A. BROWN, Appellant, v. MIDROX INSURANCE COMPANY, Respondent.
Shirley A. Brown, Richmond, Virginia, appellant pro se. Hiscock & Barclay, LLP, Albany (Alexandra M. George of counsel), for respondent.
Shirley A. Brown, Richmond, Virginia, appellant pro se. Hiscock & Barclay, LLP, Albany (Alexandra M. George of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, McCARTHY and GARRY, JJ.
PETERS, P.J.
Appeal from an order of the Supreme Court (McGrath, J.), entered March 6, 2012 in Columbia County, which, among other things, granted defendant's cross motion to dismiss the complaint.
Plaintiff owns a rental property in Columbia County, for which she purchased a landlords policy of insurance from defendant. On January 7, 2009, the property sustained damage and plaintiff thereafter submitted a claim to defendant. Defendant determined the actual cash value of the loss and, in February 2009, plaintiff accepted payment. In April 2010, plaintiff submitted a supplemental claim to defendant, which was denied as untimely.
Plaintiff commenced this action and defendant answered, asserting, among other defenses, lack of personal jurisdiction. Plaintiff moved for a default judgment following defendant's counsel's late arrival to a preliminary conference. Defendant opposed and cross-moved to dismiss the complaint. Supreme Court denied plaintiff's motion, granted defendant's cross motion and dismissed the complaint for lack of personal jurisdiction.
Although not raised before Supreme Court or before this Court on appeal, we note that defendant should have cross-moved for summary judgment rather than cross-moving to dismiss following the service of its answer. We will accordingly treat the motion as one for summary judgment ( seeCPLR 3211[c] ). While the parties would ordinarily be “entitled to notice that the motion will be accorded summary judgment treatment” ( Kavoukian v. Kaletta, 294 A.D.2d 646, 647, 742 N.Y.S.2d 157 [2002] ), that notice is unnecessary here given that “it is clear from the papers that no prejudice [will] result[ ] from omission of notice” ( Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100, 103, 480 N.Y.S.2d 190, 469 N.E.2d 511 [1984];see Rich v. Lefkovits, 56 N.Y.2d 276, 283, 452 N.Y.S.2d 1, 437 N.E.2d 260 [1982] ).
Inasmuch as plaintiff failed to serve defendant in the manner required by law, Supreme Court properly granted defendant's cross motion and dismissed the complaint. Plaintiff did not effect personal service on defendant ( seeCPLR 311[a][1]; Strong v. Bi–Lo Wholesalers, 265 A.D.2d 745, 745, 698 N.Y.S.2d 738 [1999] ), nor did she effect service pursuant to the requirements of the Business Corporation Law ( seeBusiness Corporation Law § 306[b] [1] ). Furthermore, although plaintiff mailed the summons and complaint to defendant, she failed to, among other things, include the required statements of service by mail and acknowledgment of receipt with her mailing. Thus, her attempt at service did not satisfy the alternative requirements of CPLR 312–a ( seeCPLR 312–a[a]; Clarke v. Smith, 98 A.D.3d 756, 756, 951 N.Y.S.2d 241 [2012];Matter of Maddox v. State Univ. of N.Y. at Albany, 32 A.D.3d 599, 600, 819 N.Y.S.2d 605 [2006],lv. denied8 N.Y.3d 803, 830 N.Y.S.2d 699, 862 N.E.2d 791 [2007],appeal dismissed8 N.Y.3d 978, 836 N.Y.S.2d 547, 868 N.E.2d 230 [2007]; Hilaire v. Dennison, 24 A.D.3d 1152, 1152, 807 N.Y.S.2d 432 [2005];Strong v. Bi–Lo Wholesalers, 265 A.D.2d at 745, 698 N.Y.S.2d 738). Plaintiff's pro se status and defendant's actual notice of the action provide no basis for a different result ( see Matter of Maddox v. State Univ. of N.Y. at Albany, 32 A.D.3d at 600, 819 N.Y.S.2d 605;Goldmark v. Keystone & Grading Corp., 226 A.D.2d 143, 144, 640 N.Y.S.2d 89 [1996] ).
Furthermore, in light of the foregoing, Supreme Court's denial of plaintiff's motion for a default judgment was also proper. As is relevant here, “[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint” (CPLR 3215[f]; see Oyague v. Steven O. Schwartz, M.D., P.C., 93 A.D.3d 1044, 1045, 940 N.Y.S.2d 686 [2012],lv. dismissed19 N.Y.3d 1014, 951 N.Y.S.2d 709, 976 N.E.2d 236 [2012] ), which plaintiff failed to do.
ORDERED that the order is affirmed, without costs.
LAHTINEN, McCARTHY and GARRY, JJ., concur.