## Facts

- Robert Parrotta alleged he was injured on June 16, 1991, after slipping on a wet wooden bridge on a golf course owned or controlled by Norman H. Wolgin and other defendants.
- In March 1994, Parrotta attempted to serve Wolgin by mail with an acknowledgment of receipt; the mailing was returned unsigned.
- Parrotta made no further attempt to serve Wolgin by another method and did not file proof of service within the time required by CPLR 306-b (as then in effect).
- In March 1995, a claims representative for defendants’ liability insurer requested extensions of time to answer and sought medical records and other claim-related information from Parrotta’s counsel.
- Parrotta argued these communications constituted an informal appearance and waived objections to personal jurisdiction and defective service.

## Issues

1. Whether service by mail under CPLR 312-a was effective where the acknowledgment of receipt was not signed and returned.
2. Whether defendants’ insurer’s claims-handling communications (including extension requests and information gathering) constituted an appearance or waiver of lack of personal jurisdiction.
3. Whether failure to complete service and file proof of service within CPLR 306-b’s time limits required dismissal for lack of personal jurisdiction.

## Decision

- The Appellate Division, Third Department reversed the order denying defendants’ motion.
- The court granted defendants summary judgment and dismissed the complaint against the appealing defendants for lack of personal jurisdiction.
- The court held service was never completed because the acknowledgment was not returned, and plaintiff did not otherwise serve defendants or timely file proof of service.
- The court held the insurer’s communications were claims investigation/negotiation activity and did not amount to an appearance or waiver of jurisdictional defenses.

## Legal Principles

- Service by mail under CPLR 312-a is not complete unless the defendant returns a signed acknowledgment of receipt.
- A defendant waives lack of personal jurisdiction only through conduct clearly inconsistent with preserving that objection (e.g., serving an answer without the defense or seeking merits relief without raising jurisdiction).
- Claims-handling or settlement-related communications, including requests for extensions to answer and for medical or witness information, do not by themselves constitute an appearance or waive defective service.
- Where a plaintiff fails to complete service and comply with CPLR 306-b’s proof-of-service timing requirements, and there is no waiver or appearance, dismissal for lack of personal jurisdiction is required.

## Conclusion

Because plaintiff never completed valid service or complied with proof-of-service requirements, and because the insurer’s communications did not constitute an appearance or waiver, the appellate court dismissed the action against the appealing defendants for lack of personal jurisdiction.


Parrotta v. Wolgin, 245 A.D.2d 872, 666 N.Y.S.2d 341 (N.Y. App. Div. 3d Dep’t 1997)