Pak Hong Sik MD Med. Care, P.C. v Omni Ins. Co. (2023 NY Slip Op 50431(U))

Index No. CV-714236-22/RI

Kopelevich & Feldsherova PC for Plaintiff

Gallo Vitucci Klar LLP for Defendant

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

After argument and upon the foregoing cited papers, the decision on Defendant’s motion and Plaintiff’s cross-motion is as follows:

Plaintiff, PAK HONG SIK MD MEDICAL CARE, P.C. (hereinafter, “Plaintiff”), as assignee of JOSE FELICIANO (hereinafter, “Assignor”), commenced this action against the defendant, OMNI INSURANCE COMPANY (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion (i) to dismiss for lack of personal jurisdiction and failure to state a cause of action and (ii) for summary judgment pursuant to CPLR 3212. Plaintiff cross-moved for a motion finding the Defendant in default for failing to interpose an Answer in this matter. The Defendant filed an affirmation in further support of its motion and in opposition to the cross-motion. The parties argued the motion before the undersigned on May 4, 2023, and the motion was marked submitted.

The Defendant moves to dismiss the matter on the grounds that this Court lacks personal jurisdiction over the Defendant. The Defendant argues that it is not licensed to issue insurance [*2]policies in New York or transact any business in New York. In support of its motion, Defendant presented an affidavit of Kim Blankenship, the Assistant Vice President of Operations of American Independent Companies Inc., (“AICI”) the alleged parent company of the Defendant. The Court notes that the affidavit was notarized in 2020 in Cobb County, Georgia and contains an unsigned certificate of conformity. While the lack of a certificate of conformity may be excused under CPLR 2001, the Court finds that the affidavit still predates the accident at issue by more than six months. Considering the Defendant’s motion is made more than 2 years after the affidavit was executed, the Defendant does not offer any reasonable explanation for failing to produce a contemporaneous affidavit.

The Defendant also submits a screenshot of a website entitled “NAIC.” The Court finds the screenshot of the NAIC website inadmissible for several reasons. The screenshot is not dated, does not have an accompanying affidavit explaining its origin, and does not list the website’s URL. While this website may be useful to the Defendant’s investigation, it is not offered in admissible form.

Also annexed to the Defendant’s motion is a NYS DMV MV-104 accident report (incorrectly labeled and referred to as a “Police Accident Report”). The Court takes judicial notice this is not a report issued or completed by the New York City Police Department. The accident report was allegedly completed and signed by Mr. Feliciano reporting the accident to the DMV listing the Defendant as his carrier. However, the state issuing the driver’s license and vehicle registration, along with the insurance code, are all missing from the document.

Defendant cites to Matter of Eagle Ins. Co. v Gutierrez-Guzman, a matter decided in 2005 by the Appellate Division, Second Department, in support of its motion (21 AD3d 489, 491 [2d Dept 2005]). In this case, the court found that the Supreme Court, Nassau County did not have personal jurisdiction over an insurance company named “American Independent Insurance Company” (“AIIC”). Defendant infers that AIIC and AICI are one in the same. However, there has been no evidence presented to demonstrate that the two companies are in fact the same entity or even the parent company of the Defendant. Assuming for a moment that AIIC and AICI are the same corporate entity, and the Defendant’s parent company, the Court does not find this decision binding since it was related to an accident that occurred over twenty years ago, and that the Defendant’s business practices in New York might have changed since the Appellate Division’s decision.

It should be noted that the Defendant brought a prior motion for identical relief that was denied by the undersigned in a decision and order dated January 30, 2023. In the prior order, the Court found Defendant’s unsigned affidavit of Ms. Blankenship to be defective and inadmissible. Inasmuch as the Defendant states that it disagrees with the Court’s prior order, there is no request before the Court to vacate the prior order.

In opposition, the Plaintiff argues that the Defendant is barred from bringing the instant motion due to the “single motion rule.” The Plaintiff also cites the “accident report” to support a finding of jurisdiction. The Court finds this to be a self-serving document signed by Mr. Feliciano in which any information relevant to jurisdiction is missing. In support of its cross-motion for a default judgment, the Plaintiff argues that the Defendant is in default for failing to file an answer within 30 days from the Court’s prior order, as it was directed to do.

DISCUSSION

Turning first to the branch of Defendant’s motion which is for summary judgment, that request must be denied. Since the Defendant has yet to file an answer, issue has not been joined, and any motion for summary judgment is improper. The joinder of issue is a prerequisite that is “strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). This does not bar the Defendant from bringing a motion for summary judgment once issue has been joined.

As to the Defendant’s motion to dismiss, this Court finds the Defendant is barred from seeking such relief in successive motions. CPLR 3211(e) states that “At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted” (emphasis added). Courts have consistently held this “single motion rule” to bar successive motions to dismiss (See Ramos v City of New York, 51 AD3d 753, 754 [2d Dept 2008]). The purpose of the single-motion rule is “not only to prevent delay before answer, but also to protect the pleader from being harassed by repeated CPLR 3211(a) motions and to conserve judicial resources” (Oakley v County of Nassau, 127 AD3d 946, 947 [2d Dept 2015] [internal quotation marks and citations omitted]). While the Defendant is barred from seeking pre-answer dismissal, the single motion rule will not prohibit the Defendant from seeking that relief in another form, such as a motion for summary judgment (See Id; Tapps of Nassau Supermarkets, Inc. v Linden Blvd., L.P., 269 AD2d 306, 307 [1st Dept 2000]).

The Court notes that if the Defendant’s motion was not barred by the “single motion rule,” the Defendant still failed to meet its entitlement to dismissal, based upon the defects and inadmissible evidence explained above.

As to the Plaintiff’s cross-motion, the Court finds that while the Defendant did not file an answer as directed by the Court, the Defendant did file this motion within 30 days of the Court’s prior order. Therefore, the Defendant is now placed on notice that this Court will not entertain any further pre-answer motions to dismiss and must interpose an answer in this matter.

Accordingly, it is hereby

ORDERED that Defendant’s motion is DENIED in its entirety; and it is further

ORDERED that the Defendant shall file and serve its Answer within 14 days from the date of this Order; and it is further

ORDERED that the Plaintiff’s cross-motion is DENIED, with leave to renew should Defendant fail to timely file its Answer as directed herein by the Court.

The foregoing constitutes the Decision and Order of the Court.