December 10, 2021

Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2021 NY Slip Op 51201(U))

https://www.beynensonlaw.com/case-law/longevity-med-supply-inc-v-american-ind-ins-co-2021-ny-slip-op51201u/

Court: Appellate Term, Second Department
Decided: December 10, 2021
Citation: 2021 NY Slip Op 51201(U) · 73 Misc 3d 141(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Issues: Jurisdiction and service

Cite as

Longevity Med. Supply, Inc. v American Ind. Ins. Co., 73 Misc 3d 141(A), 2021 NY Slip Op 51201(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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 appealing insurer's jurisdictional dismissal motion was granted on appeal. Service was alleged by mail under CPLR 312-a, but the provider's papers contained no acknowledgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, relying on the reasons stated in the earlier Longevity Med. Supply, Inc. v American Ind. Ins. Co. decision.

Reported in New York Official Reports at Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2021 NY Slip Op 51201(U))

[*1]

Longevity Med. Supply, Inc. v American Ind. Ins. Co.

2021 NY Slip Op 51201(U) [73 Misc 3d 141(A)]

Decided on December 10, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2018-2008 K C

Longevity Medical Supply, Inc., as Assignee of Pagan, Stephanie, Respondent,
against
American Independent Ins. Co., American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Defendants, and Omni Indemnity Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 18, 2018. The order, insofar as appealed from, denied the branch of a motion by defendants seeking to dismiss so much of the complaint as was asserted against defendant Omni Indemnity Company.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendants’ motion seeking to dismiss so much of the complaint as was asserted against defendant Omni Indemnity Company 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. Defendants moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff cross-moved for summary judgment. Defendant Omni Indemnity Company appeals from so much of an order of the Civil Court entered September 18, 2018 as denied the branch of the motion seeking to dismiss the complaint insofar as asserted against it.

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 the branch of the motion seeking to dismiss so much of the complaint as was asserted against defendant Omni Indemnity Company is granted.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 10, 2021

Cited in this decision

A label shows how this decision treated the case it cites.

Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2020 NY Slip Op 51118(U)) FollowedThe provider failed to obtain personal jurisdiction over the insurers because it did not establish completed mailed service or timely alternative service.

Similar decisions

Longevity Med. Supply, Inc. v Farmington Cas. Co. (2019 NY Slip Op 51626(U))The provider's sole challenge to the insurer's summary judgment motion was unpreserved because it was raised for the first time on appeal.
Tam Med. Supply Corp. v American Ind. Ins. Co. (2022 NY Slip Op 50560(U))The appealing defendants' motions to dismiss for lack of personal jurisdiction were granted on appeal.
Lida’s Med. Supply, Inc. v Personal Serv. Ins. Co. (2022 NY Slip Op 50578(U))The insurer's motion to dismiss for lack of personal jurisdiction was granted on appeal.
JCC Med., P.C. v Omni Indem. Co. (2021 NY Slip Op 51246(U))The insurer's summary judgment motion based on its nonissuance of a policy covering the accident vehicle was granted on appeal.
Longevity Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51235(U))The insurer established that it had already paid another provider for the same medical equipment underlying the disputed claim.