December 10, 2021

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

Headnote

In the case of Longevity Medical Supply, Inc. v American Independent Ins. Co., the main issue decided was whether the plaintiff had failed to obtain personal jurisdiction over the defendants due to lack of an acknowledgment of service. The relevant facts considered were that the affidavit of service alleged that the summons and complaint were served by mail pursuant to CPLR 312-a, but the plaintiff's papers did not contain an acknowledgment of service. The holding of the court was that the branch of the motion seeking to dismiss so much of the complaint as was asserted against defendant Omni Indemnity Company was granted, reversing the order of the Civil Court. This means that the defendant was successful in their motion to dismiss the complaint against them.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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