December 10, 2021

TAM Med. Supply Corp. v American Ind. Ins. Co. (2021 NY Slip Op 51203(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-american-ind-ins-co-2021-ny-slip-op51203u/

Court
Appellate Term, Second Department
Decided
December 10, 2021
Citation
2021 NY Slip Op 51203(U) · 73 Misc 3d 142(A)
Posture
Motion to dismiss (CPLR 3211)
Issues
Other
Cite as
TAM Med. Supply Corp. v American Ind. Ins. Co., 73 Misc 3d 142(A), 2021 NY Slip Op 51203(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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 appealing insurer was not aggrieved by an order denying another insurer's jurisdictional dismissal motion and the provider's cross motion. The Appellate Term, Second Department, dismissed the appeal under CPLR 5511. The motion sought dismissal only as to the other insurer for lack of personal jurisdiction, and the Civil Court found a factual issue over whether that insurer did business in New York. Neither that denial nor denial of the provider's cross motion aggrieved the appellant. The appellate court did not decide the jurisdictional issue.

Reported in New York Official Reports at TAM Med. Supply Corp. v American Ind. Ins. Co. (2021 NY Slip Op 51203(U))

[*1]
TAM Med. Supply Corp. v American Ind. Ins. Co.
2021 NY Slip Op 51203(U) [73 Misc 3d 142(A)]
Decided on December 10, 2021
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2021

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


PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2018-2010 K C
TAM Medical Supply Corp., as Assignee of Jean, Chery, Respondent,

against

American Independent Ins. Co., American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Defendants, and Omni Indemnity Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 18, 2018. The order denied a motion by defendant American Independent Ins. Co. which sought to dismiss the complaint insofar as asserted against it.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant American Independent Ins. Co. (AIIC) which had sought to dismiss the complaint insofar as asserted against it on the ground that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved, among other things, for “an order pursuant to . . . CPLR 3212 (a) denying [AIIC’s] Motion for Summary Judgment.” By order entered September 18, 2018, the Civil Court denied AIIC’s motion and plaintiff’s cross motion. Defendant Omni Indemnity Company appeals from each and every part of the order.

Defendant Omni Indemnity Company is not aggrieved by so much of the order as denied the motion by AIIC which sought to dismiss the complaint insofar as asserted against it (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]). Nor is defendant Omni Indemnity Company aggrieved by so much of the order as denied the cross motion by plaintiff and held that a triable issue of fact existed as to whether AIIC did business in the State of New York (see CPLR 5511).

Accordingly, the appeal is dismissed.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 10, 2021

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