December 8, 2010

Viviane Etienne Med. Care, P.C. v United Auto. Ins. Co. (2010 NY Slip Op 52151(U))

https://www.beynensonlaw.com/case-law/viviane-etienne-med-care-p-c-v-united-auto-ins-co-2010-ny-slip-op52151u/

Court
Appellate Term, Second Department
Decided
December 8, 2010
Citation
2010 NY Slip Op 52151(U) · 29 Misc 3d 141(A)
Posture
Motion to dismiss (CPLR 3211)
Outcome
Insurer prevailed
Later treatment
Followed in 2 later decisions (see Cited by)
Issues
Jurisdiction and service Discovery and procedure MVAIC
Legal questions
Service and jurisdiction over the insurer (see the maps)
Cite as
Viviane Etienne Med. Care, P.C. v United Auto. Ins. Co., 29 Misc 3d 141(A), 2010 NY Slip Op 52151(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 Florida insurer or grounds for further jurisdictional discovery. The Appellate Term, Second Department, affirmed the insurer's dismissal motion and denial of the provider's cross motion for discovery or alternative relief involving MVAIC. Service invoked CCA 404, but the insurer's litigation specialist denied New York business activity and contacts; the provider's challenge to that affidavit and request for discovery were insufficient. The court left open whether the post-answer motion objection was properly before it, but disregarded the nonprejudicial mislabeling under CPLR 3211 and excused omission of the answer under CPLR 3212 (b). Civil Court could not permit a late MVAIC claim because MVAIC was not a party.

Reported in New York Official Reports at Viviane Etienne Med. Care, P.C. v United Auto. Ins. Co. (2010 NY Slip Op 52151(U))

[*1]
Viviane Etienne Med. Care, P.C. v United Auto. Ins. Co.
2010 NY Slip Op 52151(U) [29 Misc 3d 141(A)]
Decided on December 8, 2010
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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1171 K C.
Viviane Etienne Medical Care, P.C. as Assignee of FELIX RAFAEL, Appellant,

against

United Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered October 15, 2008. The order granted defendant’s motion to dismiss the complaint, and denied plaintiff’s cross motion for an order compelling defendant to respond to plaintiff’s discovery demands or, in the alternative, an order staying the proceedings and granting plaintiff leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, service of the summons and complaint was made on the Chief Financial Officer of the
State of Florida pursuant to the long-arm statute (see CCA 404). In the complaint, plaintiff alleged that defendant, a Florida insurance company, was authorized to do business in the State of New York and transacted business in New York City. In its answer, defendant denied the allegations set forth in the complaint and asserted numerous affirmative defenses, including lack of personal jurisdiction. Thereafter, defendant moved to dismiss the complaint based on lack of personal jurisdiction. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Florida insurance company which is not authorized to do business in the State of New York, has not delivered any contracts of insurance to residents of the State of New York, does not maintain an office or agency in the State of New York, does not solicit business in the State of New York, does not have a telephone listing in the State of New York, does not have any employees located in the State of New York, has not transacted any business in the State of New York and has not committed a purposeful act in the State of New York which [*2]would confer jurisdiction. Plaintiff cross-moved for an order compelling defendant to respond to its discovery demands or, in the alternative, an order staying the proceedings and granting it leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC).

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375 [2007]). In its cross motion papers, plaintiff failed to show that some basis for jurisdiction existed; rather, it merely argued that the affidavit of defendant’s litigation specialist was insufficient since he did not establish that he had the authority to speak on jurisdictional matters on behalf of defendant. Plaintiff further asserted that it was entitled to discovery to see whether there was proper jurisdiction. We find no merit to plaintiff’s contention that the affidavit of defendant’s litigation specialist was insufficient (see generally NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff failed to establish that facts essential to justify opposition may exist” but are not available to it, thereby warranting a continuance for further discovery (see CPLR 3211 [f]).

We turn next to plaintiff’s contention, raised for the first time on appeal, that defendant’s motion to dismiss pursuant to CPLR 3211 (a) (8) was improperly made after defendant had served its answer. Even if it be assumed that this contention is properly before us, we note that CPLR 3211 (c) provides that, after adequate notice to the parties, the court may treat a CPLR 3211 motion as a motion for summary judgment. It has been held that where, as here, a motion is mislabeled as a motion to dismiss pursuant to CPLR 3211 instead of CPLR 3212 and the opponent is not notified that the motion will be treated as a motion for summary judgment, the defect should be disregarded if it caused the plaintiff no prejudice (see Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Hertz Corp. v Luken, 126 AD2d 446 [1987]; see generally O’Hara v Del Bello, 47 NY2d 363 [1979]). Further, while defendant should have annexed a copy of its answer to its motion (CPLR 3212 [b]), this defect was properly overlooked by the Civil Court (see Rodriguez v Ford Motor Co., 62 AD3d 573 [2009]).

Finally, the Civil Court did not improvidently exercise its discretion in refusing to allow plaintiff to submit a late notice of claim to MVAIC. MVAIC is not a party to the instant action and, thus, the Civil Court has no jurisdiction over it.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 08, 2010

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