June 3, 2022

Charles Deng Acupuncture, P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50563(U))

Headnote

The relevant facts the court considered were that the plaintiff, Charles Deng Acupuncture, P.C., was seeking to recover assigned first-party no-fault benefits from the defendant, American Independent Ins. Co. The affidavit of service alleged that the summons and complaint were served by mail, but the plaintiff's papers did not contain an acknowledgment of service. The main issue decided by the court was whether the plaintiff had obtained personal jurisdiction over the defendant. The holding of the case was that the defendant's motion to dismiss the complaint was granted, as the plaintiff had failed to obtain personal jurisdiction over the defendant. The court reversed the order of the Civil Court and granted the defendant's motion to dismiss the complaint.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50563(U))

Charles Deng Acupuncture, P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50563(U)) [*1]

Charles Deng Acupuncture, P.C. v American Ind. Ins. Co.

2022 NY Slip Op 50563(U) [75 Misc 3d 136(A)]

Decided on June 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 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
2019-1537 K C

Charles Deng Acupuncture, P.C., as Assignee of Destin, Woldine, Respondent,
against
American Independent Ins. Co., 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 (Harriet L. Thompson, J.), entered November 20, 2018. 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, among others, that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of the order of the Civil Court as denied defendant’s motion seeking dismissal of 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 3, 2022