On March 04, 2020 a
Motion-Secondary
was filed
involving a dispute between
Jerald I Wolfgang,
and
Gina M Aquilina,
for Torts - Motor Vehicle
in the District Court of Niagara County.
Preview
FILED: NIAGARA COUNTY CLERK 07/28/2020 10:08 AM INDEX NO. E171801/2020
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2020
STATE OF NEW YORK : SUPREME COURT
COUNTY OF NIAGARA
AFFIRMATION IN
JERALD I.WOLFGANG '
OPPOSITION TO PLAINTIFF'S
MOTION
Plaintiff,
vs.
Assigned Justice:
Hon. Ralph A. Boniello, III, JSC
GINA AQUILINA,
Index No.: E171801/2020
Defendant.
Mark A. Forden, an attorney duly admitted to practice law in the Courts of the State of
New York, affirms the following statement to be true under the penalties of perjury pursuant to
CPLR Section 2106:
1. I am the attorney for the Defendant in the within action, and as such, am familiar
with the facts and circumstances of this action.
2. I make this Affirmation in opposition to Plaintiff's Motion seeking an Order
directing an alternative method of service of the Summons and Complaint by service upon
Defendant's automobile insurance provider, GEICO Indemnity Company.
3. Plaintiff admits in his Motion that he has been unable to properly serve the
Summons and Complaint upon the Defendants to date. (See Aff. of Mark D. Grossman, Esq. in
support of Plaintiff's Motion).
4. Plaintiff now seeks leave of this Court to serve defendant in a manner other than
those permitted in CPLR § 308(1-4).
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FILED: NIAGARA COUNTY CLERK 07/28/2020 10:08 AM INDEX NO. E171801/2020
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2020
5. Pursuant to the plain language of CPLR § 308(5), plaintiff has the burden of
establishing that all other methods of service of process under CPLR § 308(1), (2) and (4) are
"impractical." (2nd
See also Sanders v. Elie, 29 A.D.3d 773 Dept. 2006) and Corbo v. Stephens,
(2nd
272 A.D.2d 502 Dept. 2000). nowever, other than summarily referencing in his affidavit
the impracticality of service under those sections, plaintiff does not in fact identify any reason or
reasons for such impracticality that would satisfy his burden.
6. Defendant has never been served with process in this matter or been properly
notified of this action in accordance with the laws of New York State. The entity which plaintiff
seeks to serve, GEICO Indemnity Company, is merely the holder of a piece of property that was
owned by the purported defendant at the time of the accident. As such, any jurisdiction
conferred, if proper at all,should be limited to the property at issue, to wit, the insurance policy,
in rem. (See Seider v. Roth, 17 N.Y.2d 111 (1966)). Such a result would be in the interest of
justice for defendant.
7. In light of the foregoing, in the event that this Court finds that plaintiff has
established that the methods of service of process set forth in CPLR § 308(1), (2) and (4) are in
fact impractical, defendant asks that service on GEICO Indemnity Company confer only in rem
jurisdiction, thereby limiting the exposure to defendant to the limits of the automobile insurance
policy that covered her on the date of the subject accident.
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FILED: NIAGARA COUNTY CLERK 07/28/2020 10:08 AM INDEX NO. E171801/2020
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2020
WHEREFORE, it is respectfully requested that an Order be issued from this Court
denying the relief requested in the Plaintiff's Motion, or in the alternative, directing an
Defendants'
alternative method of service of the summons and complaint by service upon
insurance company, GEICO, on the condition that it confers in rem jurisdiction only, thereby
Defendants'
capping the damages at the insurance policy.
DATED: Buffalo, New York
July 28, 2020
BY: Mark A. Forden, Esq.
Law Office of Daniel R. Archilla
TO: Mark D. Grossman, Esq.
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Document Filed Date
July 28, 2020
Case Filing Date
March 04, 2020
Category
Torts - Motor Vehicle
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FILED: NIAGARA COUNTY CLERK 07/28/2020 10:08 AM INDEX NO. E171801/2020 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2020 STATE OF NEW YORK : SUPREME COURT COUNTY OF NIAGARA AFFIRMATION IN JERALD I.WOLFGANG ' OPPOSITION TO PLAINTIFF'S MOTION Plaintiff, vs. Assigned Justice: Hon. Ralph A. Boniello, III, JSC GINA AQUILINA, Index No.: E171801/2020 Defendant. Mark A. Forden, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following statement to be true under the penalties of perjury pursuant to CPLR Section 2106: 1. I am the attorney for the Defendant in the within action, and as such, am familiar with the facts and circumstances of this action. 2. I make this Affirmation in opposition to Plaintiff's Motion seeking an Order directing an alternative method of service of the Summons and Complaint by service upon Defendant's automobile insurance provider, GEICO Indemnity Company. 3. Plaintiff admits in his Motion that he has been unable to properly serve the Summons and Complaint upon the Defendants to date. (See Aff. of Mark D. Grossman, Esq. in support of Plaintiff's Motion). 4. Plaintiff now seeks leave of this Court to serve defendant in a manner other than those permitted in CPLR § 308(1-4). 1 of 3 FILED: NIAGARA COUNTY CLERK 07/28/2020 10:08 AM INDEX NO. E171801/2020 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2020 5. Pursuant to the plain language of CPLR § 308(5), plaintiff has the burden of establishing that all other methods of service of process under CPLR § 308(1), (2) and (4) are "impractical." (2nd See also Sanders v. Elie, 29 A.D.3d 773 Dept. 2006) and Corbo v. Stephens, (2nd 272 A.D.2d 502 Dept. 2000). nowever, other than summarily referencing in his affidavit the impracticality of service under those sections, plaintiff does not in fact identify any reason or reasons for such impracticality that would satisfy his burden. 6. Defendant has never been served with process in this matter or been properly notified of this action in accordance with the laws of New York State. The entity which plaintiff seeks to serve, GEICO Indemnity Company, is merely the holder of a piece of property that was owned by the purported defendant at the time of the accident. As such, any jurisdiction conferred, if proper at all,should be limited to the property at issue, to wit, the insurance policy, in rem. (See Seider v. Roth, 17 N.Y.2d 111 (1966)). Such a result would be in the interest of justice for defendant. 7. In light of the foregoing, in the event that this Court finds that plaintiff has established that the methods of service of process set forth in CPLR § 308(1), (2) and (4) are in fact impractical, defendant asks that service on GEICO Indemnity Company confer only in rem jurisdiction, thereby limiting the exposure to defendant to the limits of the automobile insurance policy that covered her on the date of the subject accident. 2 of 3 FILED: NIAGARA COUNTY CLERK 07/28/2020 10:08 AM INDEX NO. E171801/2020 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2020 WHEREFORE, it is respectfully requested that an Order be issued from this Court denying the relief requested in the Plaintiff's Motion, or in the alternative, directing an Defendants' alternative method of service of the summons and complaint by service upon insurance company, GEICO, on the condition that it confers in rem jurisdiction only, thereby Defendants' capping the damages at the insurance policy. DATED: Buffalo, New York July 28, 2020 BY: Mark A. Forden, Esq. Law Office of Daniel R. Archilla TO: Mark D. Grossman, Esq. 3 of 3