December 13, 2019

Domny Med. Servs., P.C. v First Acceptance Ins. Co., Inc. (2019 NY Slip Op 52048(U))

https://www.beynensonlaw.com/case-law/domny-med-servs-p-c-v-first-acceptance-ins-co-inc-2019-ny-slip-op52048u/

Court: Appellate Term, Second Department
Decided: December 13, 2019
Citation: 2019 NY Slip Op 52048(U) · 66 Misc 3d 129(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

Domny Med. Servs., P.C. v First Acceptance Ins. Co., Inc., 66 Misc 3d 129(A), 2019 NY Slip Op 52048(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 provider failed to establish personal jurisdiction because it supplied no signed acknowledgment of service under CPLR 312-a. The provider mailed the summons and complaint to an out-of-state insurer, which moved before answering to dismiss under CPLR 3211 (a) (8). Service under CPLR 312-a is complete only when the signed acknowledgment is mailed or delivered to the plaintiff, as provided in CPLR 312-a (b) (1) and CPLR 306 (d). Even if service had been effective, the provider's attorney's affirmation did not establish jurisdiction under CCA 404 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's dismissal motion, expressly declining to address any other issue.

Reported in New York Official Reports at Domny Med. Servs., P.C. v First Acceptance Ins. Co., Inc. (2019 NY Slip Op 52048(U))

[*1]

Domny Med. Servs., P.C. v First Acceptance Ins. Co., Inc.

2019 NY Slip Op 52048(U) [66 Misc 3d 129(A)]

Decided on December 13, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1104 K C

Domny Medical Services, P.C., as Assignee of Garcia, Lionel, Respondent,
against
First Acceptance Insurance Company, Inc., Appellant.

Galvano & Xanthakis, P.C. (Steven F. Granville of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered March 14, 2018. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), or for alternative relief.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits by mailing a copy of the summons and complaint to the out-of-state defendant insurance company pursuant to CPLR 312-a. Insofar as is relevant to this appeal, defendant moved, pre-answer, to dismiss the complaint pursuant to, among other things, CPLR 3211 (a) (8), on the ground that the Civil Court lacked personal jurisdiction over defendant. By order entered March 14, 2018, the Civil Court, among other things, denied defendant’s motion.

Upon a review of the record, we find that defendant made a prima facie showing that personal jurisdiction had not been obtained over it. In order to successfully oppose a pre-answer motion to dismiss a complaint pursuant to CPLR 3211 (a) (8), a plaintiff “need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the . . . Court” (Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986, 986 [2007]; see also Hopstein v Cohen, [*2]143 AD3d 859, 860 [2016]; EMC Health Prods., Inc. v Maryland Auto. Ins. Fund, 64 Misc 3d 146[A], 2019 NY Slip Op 51316[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pavlova v American Ind. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Here, plaintiff failed to show that its service of process pursuant to CPLR 312-a was properly effectuated, since it did not provide a signed acknowledgment of receipt. Pursuant to CPLR 312-a, service is complete only on the date the signed acknowledgment of receipt is mailed or delivered to the plaintiff (see CPLR 312-a [b] [1]; 306 [d]; Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U],*2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 60 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). We note that, even if service of process had been properly effectuated pursuant to CPLR 312-a, the affirmation of plaintiff’s attorney was insufficient to demonstrate that personal jurisdiction had been acquired over defendant under the long-arm statute of the Civil Court (see CCA 404 [a]).

We pass on no other issue.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) is granted.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019

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 CPLR 312-a mail service never completed because plaintiff produced no signed acknowledgment of receipt, so personal jurisdiction over the insurer was not obtained and dismissal under CPLR 3211 (a) (8) 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.

EMC Health Prods., Inc. v Maryland Auto. Ins. Fund (2019 NY Slip Op 51316(U))The provider failed to establish personal jurisdiction over the out-of-state insurer after the insurer showed no jurisdictional basis for suit.
Pavlova v American Ind. Ins. Co. (2018 NY Slip Op 50943(U))The provider failed to establish personal jurisdiction over a Pennsylvania insurer through counsel's unsupported affirmation.
Active Care Med. Supply Corp. v Kemper Ins. Co. (2019 NY Slip Op 50923(U)) FollowedThe provider failed to acquire personal jurisdiction through mailed service without a returned acknowledgment or another method of service.
Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co. (2015 NY Slip Op 25164) FollowedThe insurer did not waive its jurisdictional defense by failing to move within 60 days when no action had been commenced.

Cited by

Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2020 NY Slip Op 51118(U))The provider failed to obtain personal jurisdiction over the insurers because it did not establish completed mailed service or timely alternative service.
Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 51120(U))The provider failed to acquire personal jurisdiction because the record showed no signed acknowledgment of mailed service or timely alternative service.

Similar decisions

Parisien v First Acceptance Ins. Co., Inc. (2019 NY Slip Op 52050(U))The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 51736(U))The provider failed to establish personal jurisdiction over the out-of-state insurer through counsel's unsupported affirmation.
Parisien v American Ind. Ins. Co. (2019 NY Slip Op 51965(U))The provider's attorney affirmation lacked personal knowledge and failed to establish long-arm jurisdiction over the out-of-state insurer.
JCC Med., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 50642(U))The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Great Health Care Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 50735(U))The provider failed to acquire personal jurisdiction because the record showed no signed acknowledgment of service by mail.