June 10, 2022

Lida’s Med. Supply, Inc. v Personal Serv. Ins. Co. (2022 NY Slip Op 50578(U))

https://www.beynensonlaw.com/case-law/lidas-med-supply-inc-v-personal-serv-ins-co-2022-ny-slip-op50578u/

Court: Appellate Term, Second Department
Decided: June 10, 2022
Citation: 2022 NY Slip Op 50578(U) · 75 Misc 3d 138(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Issues: Jurisdiction and service
Legal questions: Service and jurisdiction over the insurer (see the maps)

Cite as

Lida's Med. Supply, Inc. v Personal Serv. Ins. Co., 75 Misc 3d 138(A), 2022 NY Slip Op 50578(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's motion to dismiss for lack of personal jurisdiction was granted on appeal. The provider alleged mail service under CPLR 312-a, but its papers contained no acknowledgment of service. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co.

Reported in New York Official Reports at Lida’s Med. Supply, Inc. v Personal Serv. Ins. Co. (2022 NY Slip Op 50578(U))

[*1]

Lida’s Med. Supply, Inc. v Personal Serv. Ins. Co.

2022 NY Slip Op 50578(U) [75 Misc 3d 138(A)]

Decided on June 10, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-174 K C

Lida’s Medical Supply, Inc., as Assignee of Pettie, Timothy, Respondent,
against
Personal Service Insurance Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered March 13, 2019. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over defendant. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court entered March 13, 2019 as denied defendant’s motion to dismiss the complaint.

For the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co. (69 Misc 3d 127[A], 2020 NY Slip Op 51118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order, insofar as appealed from, is reversed, and defendant’s motion to dismiss the complaint is granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Service and jurisdiction over the insurer

Open the full map

Was the insurer validly served with process, and does the court have personal jurisdiction over it?

This decision: Method, place, timing or proof of service on the insurer failed, so no jurisdiction was obtained

Held that personal jurisdiction over the insurer was never obtained because the claimed CPLR 312-a mail service lacked a signed acknowledgment of receipt, so the insurer's motion to dismiss was granted.

Jurisdiction upheldService defectiveNo jurisdiction over insurerHearing or discovery neededObjection waived/not requiredThis decisionCites it or cited by itCited or followed

Of the 129 decisions on this question in the Second Department courts and the Court of Appeals, 34 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2020 NY Slip Op 51118(U)) FollowedThe provider failed to obtain personal jurisdiction over the insurers because it did not establish completed mailed service or timely alternative service.

Similar decisions

Lida’s Med. Supply, Inc. v American Ind. Ins. Co. (2019 NY Slip Op 50502(U))The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal.
Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2021 NY Slip Op 51201(U))The appealing insurer's jurisdictional dismissal motion was granted on appeal.
Lida’s Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51691(U))The provider's summary judgment motion was denied because it failed to establish untimely denial or a legally insufficient timely denial.
Charles Deng Acupuncture, P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50563(U))The insurer's motion to dismiss the no-fault complaint for lack of personal jurisdiction was granted on appeal.
Lida’s Med. Supply, Inc. v Hereford Ins. Co. (2019 NY Slip Op 51356(U))The provider failed to establish entitlement to payment, and the insurer failed to establish timely mailing of its follow-up IME letter.