J.C. Healing Touch Rehab, P.C. v Access Gen. Ins. Co. (2013 NY Slip Op 52086(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 5, 2012. The order granted the branch of defendant’s motion seeking leave to renew its prior motion to dismiss the complaint, which had been determined by an order of the same court entered February 15, 2011, and, upon renewal, in effect, vacated the February 15, 2011 order and thereupon granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to reargue and renew its prior motion to dismiss the complaint pursuant to CPLR 3211 (a) (8). The prior motion, which sought dismissal on the ground that the Civil Court lacked personal jurisdiction over defendant, had been denied by order entered February 15, 2011 with leave to renew upon proper papers, as a certificate of conformity had been lacking. In support of its motion for leave to reargue and renew, defendant submitted a certificate of conformity, which accompanied an affidavit of defendant’s litigation specialist. The litigation specialist alleged, among other things, that defendant maintained offices in Atlanta, Georgia and that defendant is not authorized to conduct business in New York. He further stated that defendant does not issue or deliver contracts of insurance to New York State residents or corporations authorized to do business in New York and has never had any employees either located in or working to solicit business in New York. Plaintiff argued in opposition that the certificate of conformity was inadmissible and that defendant had failed to establish that the court lacked personal jurisdiction over defendant. Plaintiff additionally asserted that it was entitled to discovery to determine whether there was proper jurisdiction. Plaintiff appeals from an order of the Civil Court entered January 5, 2012 which granted the branch of defendant’s motion seeking leave to renew its prior motion to dismiss the complaint, and, upon renewal, in effect, vacated the prior order entered February 15, 2011 and thereupon granted defendant’s motion to dismiss the complaint.

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, 381 n 5 [2007]). Here, defendant made a prima facie showing that personal jurisdiction had not been obtained [*2]over it based on any of the acts set forth in the Civil Court’s long-arm jurisdiction statute (CCA 404 [a]). In order for plaintiff to prove that the Civil Court had obtained personal jurisdiction over defendant, a corporation which is not a resident of the City of New York, plaintiff was required to establish that defendant either transacted business, contracted to supply goods or services, committed a tortious act, or used or possessed any real property within the City of New York (CCA 404 [a]; see Metro Fuel Oil Corp. v Broadway Hgts. Dairy, Inc., 36 Misc 3d 150[A], 2012 NY Slip Op 51663[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). The affirmation of plaintiff’s attorney offered in opposition to defendant’s motion failed to demonstrate that he possessed personal knowledge of the facts to show that some basis for jurisdiction existed. Furthermore, plaintiff did not establish that it was entitled to discovery to determine whether there was proper jurisdiction (see CPLR 3211 [f]; 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, 11th & 13th Jud Dists 2010]). Since plaintiff failed to show that defendant had contacts with the City of New York, the Civil Court properly dismissed the complaint.

Accordingly, the order is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 12, 2013