ALIOU DIALLO v. New Jersey Manufacturers Ins. Co., Defendant(s) (2026)

Upon the foregoing cited papers, and after oral arguments, the Decision/Order on Defendant's Motion for Summary Judgment, Plaintiff's Motion for Default Judgment and advanced Plaintiff's Cross-Motion for Summary Judgment are as follows:

Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment are rejected as a matter of law as procedurally improper as issue had not been joined. On November 21, 2022, Plaintiff rejected Defendant's Answer dated November 8, 2022, and moved for Default Judgment. Thus, issue was not joined rendering both motions for summary judgment procedurally improper as a matter of law. Plaintiff's attempt to argue an inference of joinder of issue by its filing the Cross-Motion for Summary Judgment and Defendant serving an Answer although rejected by Plaintiff, nevertheless, operates as a notice of appearance for the proposition to establish Defendant's waiver of jurisdictional defense is rejected. Once an Answer is rejected, nothing that may flow from that Answer can be considered. Plaintiff may not opportunistically argue that the Answer must be considered in one respect, as notice of appearance to waive jurisdictional defense, whereas simultaneously rejecting consideration of the Answer as responsive pleading for joinder of issue. Ultimately, Plaintiff bears the initial burden of establishing jurisdiction. Plaintiff's affidavit of service, which purports to effectuate service pursuant to VTL § 253, fails to establish personal jurisdiction over Defendant, a nonresident corporate insurer, neither an owner nor operator in a No-Fault action. "Therefore, as a matter of law, this method of service is improper on its face and void ab initio. Plaintiff failed to properly effectuate service of process divesting This Court of jurisdiction over Defendant" (A to Z Supply Servs., Inc. v. 21st Century Ins. Co., 2025 NY Slip Op 51887(U), [Civ Ct, Kings County 2025], citing Pedro Torres-Jimenez MD, P.C. v Am. Access Cas. Co., 2025 NY Slip Op 50358 *3 [U] [Civ Ct, Kings County 2025]). In furtherance of the administration of justice, This Court rejects and rebukes the use of this improper on its face and void ab initio method of service as a litigation tactic.

For the foregoing reasons, Plaintiff's Motion for Default Judgment is DENIED. The case is dismissed without prejudice. Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment are denied as moot.

This constitutes the Decision and Order of This Court.

Date: June 26, 2026

Hon Sandra Elena Roper, JCC

Sandra Elena Roper, J.