June 15, 2018

Pavlova v American Ind. Ins. Co. (2018 NY Slip Op 50943(U))

https://www.beynensonlaw.com/case-law/pavlova-v-american-ind-ins-co-2018-ny-slip-op-50943u/

Court: Appellate Term, Second Department
Decided: June 15, 2018
Citation: 2018 NY Slip Op 50943(U)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Later treatment: Followed in 14 later decisions (see Cited by)
Issues: Jurisdiction and service

Cite as

Pavlova v American Ind. Ins. Co., 2018 NY Slip Op 50943(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 provider failed to establish personal jurisdiction over a Pennsylvania insurer through counsel's unsupported affirmation. The Appellate Term, Second Department, reversed the order denying the insurer's motion under CPLR 3211 (a) (8) and granted dismissal of the assigned no-fault action. Employee affidavits established that the insurer was not licensed in New York and had no offices, agents, soliciting representatives, or real property there. Although a provider opposing a jurisdictional dismissal need only make a prima facie showing of jurisdiction, counsel did not establish personal knowledge supporting assertions about policies issued to New York drivers or relationships with New York defense counsel. The affirmation failed to establish jurisdiction under CCA 404 (a).

Reported in New York Official Reports at Pavlova v American Ind. Ins. Co. (2018 NY Slip Op 50943(U))

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

Ksenia Pavlova, D.O., as Assignee of Emmanuel Borgella, Respondent,
against
American Independent Ins. Co., Appellant.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 11, 2016. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without 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, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the Civil Court lacked personal jurisdiction over defendant. In several affidavits in support of the motion, defendant’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over this defendant. Plaintiff opposed the motion with an affirmation by its counsel, who made unsupported assertions that defendant had transacted business in New York by knowingly issuing policies to New York drivers, and that defendant had established an ongoing relationship with defense counsel in New York, thereby subjecting defendant to jurisdiction in New York. Defendant’s attorney asserted in a reply affirmation that the arguments raised by plaintiff had been rejected by this court in Compas Med., P.C. v American Ind. Ins. Co. (47 Misc 3d 134[A], 2015 NY Slip Op 50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant appeals from an order of the Civil Court entered August 11, 2016 denying defendant’s motion to dismiss the complaint.

Defendant made a prima facie showing that personal jurisdiction had not been obtained over it. “In opposing a motion to dismiss pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, ‘a plaintiff need only make a prima facie showing that such jurisdiction exists’ ” (Hopstein v Cohen, 143 AD3d 859, 860 [2016], quoting Lang v Wycoff Hgts. Med. Ctr., [*2]55 AD3d 793, 798 [2008]). In the case at bar, the affirmation of plaintiff’s attorney was insufficient to demonstrate that personal jurisdiction over defendant existed under the Civil Court’s long-arm statute (see CCA 404 [a]), as plaintiff’s counsel failed to establish that he possessed personal knowledge of the facts.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is granted.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 15, 2018

Cited in this decision

Compas Med., P.C. v American Ind. Ins. Co. (2015 NY Slip Op 50481(U))The provider's request for jurisdictional discovery was unpreserved and lacked tangible evidence that jurisdictional facts might exist.

Cited by (18)

A label shows how the later decision treated this one.

Lida’s Med. Supply, Inc. v American Ind. Ins. Co. (2019 NY Slip Op 50502(U)) FollowedThe insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal.
Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co. (2019 NY Slip Op 50635(U)) FollowedThe insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 51736(U)) FollowedThe provider failed to establish personal jurisdiction over the out-of-state insurer through counsel's unsupported affirmation.
Performance Plus Med., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 50632(U)) FollowedThe insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co. (2019 NY Slip Op 50633(U)) FollowedThe insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co. (2019 NY Slip Op 50634(U)) FollowedThe insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co. (2019 NY Slip Op 50636(U)) FollowedThe insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co. (2019 NY Slip Op 50637(U)) FollowedThe insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 50638(U)) FollowedThe insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co. (2019 NY Slip Op 50639(U)) FollowedThe insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.

Show all 18 citing decisions

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