August 9, 2019

EMC Health Prods., Inc. v Maryland Auto. Ins. Fund (2019 NY Slip Op 51316(U))

https://www.beynensonlaw.com/case-law/emc-health-prods-inc-v-maryland-auto-ins-fund-2019-ny-slip-op51316u/

Court: Appellate Term, Second Department
Decided: August 9, 2019
Citation: 2019 NY Slip Op 51316(U)
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

EMC Health Prods., Inc. v Maryland Auto. Ins. Fund, 2019 NY Slip Op 51316(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 over the out-of-state insurer after the insurer showed no jurisdictional basis for suit. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, consolidating three actions for disposition of the insurer's motion and dismissing the complaint. The insurer alleged that it conducted no New York business, issued no policies there, had no local sales agent, and was not licensed there. Under CCA 404, the provider bore the ultimate burden of establishing jurisdiction, even with doubts resolved in its favor. Counsel's affirmation lacked personal knowledge and supplied no jurisdictional evidence. The provider's objection that consolidation required the pleadings was first raised on appeal and was not considered.

Reported in New York Official Reports at EMC Health Prods., Inc. v Maryland Auto. Ins. Fund (2019 NY Slip Op 51316(U))

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

EMC Health Products, Inc., as Assignee of Boakye, Oheneba, Appellant,
against
Maryland Automobile Insurance Fund, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jeffrey G. Lerman, P.C. (Jeffrey G. Lerman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 19, 2017. The order, insofar as appealed from, granted defendant’s motion, in effect, to consolidate the above-entitled action with actions entitled EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion and, upon consolidation, to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, in effect, consolidate the instant action with two related actions entitled EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion, and, upon consolidation, to dismiss the complaints in all three actions, contending that the Civil Court lacked personal jurisdiction over defendant. In support of its motion, defendant alleged that it conducts no business in the State of New York, including that it does not issue insurance policies here, has no sales representative or agent within [*2]the state, and is not licensed to transact business within the State of New York. Plaintiff opposed the motion. Plaintiff appeals from so much of an order of the Civil Court entered April 19, 2017 as consolidated the actions for the purposes of disposition of the motion and dismissed the complaint.

On appeal, plaintiff contends that the court erred in consolidating the three actions, arguing that consolidation is improper because defendant “failed to proffer any of the pleadings from any of the actions.” As this argument is raised for the first time on appeal, it is not considered (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Upon defendant’s prima facie showing that the Civil Court lacked personal jurisdiction over it, on the ground that there was no jurisdictional basis for suit in the Civil Court of the City of New York (see CCA 404), the burden shifted to plaintiff to establish that it had acquired jurisdiction, as plaintiff “carries the ultimate burden of proof on that issue” (Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]; see also Sanchez v Major, 289 AD2d 320 [2001]; Brandt v Toraby, 273 AD2d 429 [2000]; Cushley v Wealth Masters Intl., 29 Misc 3d 144[A], 2010 NY Slip Op 52221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In determining whether a plaintiff has met its burden, a court must construe the pleadings, affidavits and other evidentiary materials in a light most favorable to plaintiff, and must resolve all doubts in favor of jurisdiction (see Brandt, 273 AD2d at 430). Here, plaintiff failed to meet its burden. Plaintiff’s opposition papers consisted only of the affirmation of its counsel, who had no personal knowledge of the underlying facts (see Carte v Parkoff, 152 AD2d 615 [1989]). Plaintiff failed to produce evidence showing a jurisdictional basis for the service (see CCA 404; Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638 [1999]; see also Matter of Hereford Ins. Co. v American Ind. Ins., 136 AD3d 551 [2016]).

In view of the foregoing, we do not consider plaintiff’s other arguments.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 09, 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: Insurer (usually out-of-state) not subject to the forum's jurisdiction; plaintiff did not show a basis

Affirmed dismissal because, after the fund showed it did no business and was not licensed in New York, plaintiff offered only counsel's affirmation without personal knowledge and no evidence of a CCA 404 jurisdictional basis.

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, 57 (this one included) are in the same category.

Cited by

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

Similar decisions

Metro Health Prods., Inc. v Maryland Auto Ins. Fund (2020 NY Slip Op 50229(U))The provider failed to establish a jurisdictional basis for serving the nonresident insurer by mail outside New York. The insurer made a prima facie showing that Civil Court lacked personal jurisdiction, asserting that it conducted no New York business, issued no policies there and had no New York agent or license.
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.
EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 51834(U))The provider's action was premature because requested verification remained outstanding when the action commenced.
EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50314(U))The insurer's employee affidavit established that no policy it issued covered the vehicle on the accident date.
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.