June 10, 2022

Lida’s Med. Supply, Inc. v Personal Serv. Ins. Co. (2022 NY Slip Op 50578(U))

Headnote

The relevant facts considered in this case include the provider's attempt to recover assigned first-party no-fault benefits and the method of service of the summons and complaint, which alleged service by mail but did not contain an acknowledgment of service. The main issue decided was whether the provider had obtained personal jurisdiction over the defendant. The holding of the case was that the order denying the defendant's motion to dismiss the complaint was reversed, and the defendant's motion to dismiss the complaint was granted. The court cited a similar case, Longevity Med. Supply, Inc. v American Ind. Ins. Co., in which the order to dismiss the complaint was reversed based on similar circumstances.

Reported in New York Official Reports at Lida’s Med. Supply, Inc. v Personal Serv. Ins. Co. (2022 NY Slip Op 50578(U))

Lida’s Med. Supply, Inc. v Personal Serv. Ins. Co. (2022 NY Slip Op 50578(U)) [*1]

Lida’s Med. Supply, Inc. v Personal Serv. Ins. Co.

2022 NY Slip Op 50578(U) [75 Misc 3d 138(A)]

Decided on June 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 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
2020-174 K C

Lida’s Medical Supply, Inc., as Assignee of Pettie, Timothy, Respondent,
against
Personal Service Insurance Company, 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 (Cenceria P. Edwards, J.), entered March 13, 2019. 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 that plaintiff had failed to obtain personal jurisdiction over defendant. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court entered March 13, 2019 as denied defendant’s motion to dismiss 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 10, 2022