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October 25, 2019

Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 51736(U))

https://www.beynensonlaw.com/case-law/pierre-j-renelique-m-d-p-c-v-american-ind-ins-co-2019-ny-slip-op51736u/

Court
Appellate Term, Second Department
Decided
October 25, 2019
Citation
2019 NY Slip Op 51736(U)
Posture
Motion to dismiss (CPLR 3211)
Outcome
Insurer prevailed
Issues
Jurisdiction and service Discovery and procedure
Legal questions
Service and jurisdiction over the insurer (see the maps)
Cite as
Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., 2019 NY Slip Op 51736(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 the out-of-state insurer through counsel's unsupported affirmation. The insurer's employee affidavits established its lack of New York business contacts. Counsel's affirmation lacked personal knowledge and did not establish jurisdiction under CCA 404 (a). Authority to compel arbitration did not establish judicial jurisdiction. The provider's request for jurisdictional discovery under CPLR 3211 (d) was raised for the first time on appeal; alternatively, the unverified complaint and conclusory affirmation supplied no tangible evidence warranting discovery. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion to dismiss the assigned no-fault complaint under CPLR 3211 (a) (8).

Reported in New York Official Reports at Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 51736(U))

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

Pierre J. Renelique, M.D., P.C., as Assignee of Vernizier, Jean Willy, 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 of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered October 18, 2017. 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).

In support of its motion to dismiss, defendant submitted multiple affidavits by its employees, who 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 has been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over this defendant (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Insofar as is relevant, plaintiff opposed defendant’s motion with an affirmation by its counsel, who made unsupported assertions that, among other things, defendant had transacted business in New York by knowingly issuing policies to New York drivers, and that defendant had established an ongoing [*2]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 were 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 made a prima facie showing that personal jurisdiction had not been obtained over it (see Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co., 63 Misc 3d 144[A], 2019 NY Slip Op 50635[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Lida’s Med. Supply, Inc. v American Ind. Ins. Co., 63 Misc 3d 137[A], 2019 NY Slip Op 50502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pavlova v American Ind. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “In opposing a motion to dismiss the complaint 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] [internal quotation marks omitted]; see also Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794 [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” (Pavlova, 60 Misc 3d 128[A], 2018 NY Slip Op 50943[U], *2).

Plaintiff’s contention that Matter of American Ind. Ins. Co. v Nova Acupuncture, P.C. (137 AD3d 1270 [2016]) (Nova) stands for the proposition that New York courts might have personal jurisdiction over defendant lacks merit. In Nova, the issue was limited to whether defendant could be compelled to arbitrate a claim for first-party no-fault benefits. However, as the Appellate Division, Second Department, had previously noted, “[a]t this pre-arbitration stage, the issue is not whether New York courts have jurisdiction over AIIC, but whether the arbitrator has authority under the terms of the insurance contract to award no-fault benefits to the appellants” and, “[w]hile personal jurisdiction is required for the exercise of the state’s judicial power over a party, arbitration is a form of dispute resolution almost wholly independent of the court system” (American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 762-763 [2013]).

To the extent that plaintiff argues that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3211 [d]), this argument is not properly before us, as plaintiff’s contention that it needs discovery “regarding the nature and extent of [defendant’s] relationship with parent/subsidiary companies and, in particular, the extent of activity in New York State by these companies” is raised by plaintiff for the first time on appeal (see Copp v Ramirez, 62 AD3d 23 [2009]). Even if the argument were properly before us, neither the unverified complaint nor the conclusory affirmation of plaintiff’s counsel in opposition to defendant’s motion constituted the “tangible evidence” (Mandel v Busch Entertainment Corp., 215 AD2d 455, 455 [1995]) necessary to substantiate plaintiff’s allegations that jurisdiction could exist, thereby demonstrating that plaintiff’s assertion of the existence of a jurisdictional predicate was not “frivolous” (Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]). Thus, plaintiff did not make a “sufficient start” (id.) by showing that essential jurisdictional facts might exist to warrant discovery on the issue of personal jurisdiction over defendant (see Compas Med., P.C.,47 Misc 3d 134[A], 2015 NY Slip Op 50481[U]).

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

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



ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 25, 2019

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Service and jurisdiction over the insurer

Open the full map

Was the insurer validly served with process, and does the court have personal jurisdiction over it?

This decision: Insurer (usually out-of-state) not subject to the forum's jurisdiction; plaintiff did not show a basis

Reversed and granted the CPLR 3211 (a) (8) dismissal because the Pennsylvania insurer's employee affidavits showed no New York presence and counsel's affirmation without personal knowledge showed no CCA 404 basis; the discovery request was unpreserved and lacked a sufficient start anyway.

  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 108
  • Trial courtsTrial 15
2013, Appellate Division: 1 decision (1 Objection waived/not required)2010, Appellate Division: 1 decision (1 Jurisdiction upheld)2008, Appellate Division: 2 decisions (2 Jurisdiction upheld)2006, Appellate Division: 1 decision (1 Jurisdiction upheld)2003, Appellate Division: 1 decision (1 Jurisdiction upheld)2022, Appellate Term: 7 decisions (1 Jurisdiction upheld, 5 Service defective, 1 No jurisdiction over insurer)2021, Appellate Term: 4 decisions (2 Service defective, 1 No jurisdiction over insurer, 1 Hearing or discovery needed)2020, Appellate Term: 8 decisions (2 Jurisdiction upheld, 4 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2019, Appellate Term: 53 decisions (4 Jurisdiction upheld, 6 Service defective, 42 No jurisdiction over insurer, 1 Objection waived/not required)2018, Appellate Term: 1 decision (1 No jurisdiction over insurer)2017, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 Service defective)2016, Appellate Term: 1 decision (1 Jurisdiction upheld)2015, Appellate Term: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2014, Appellate Term: 4 decisions (1 Jurisdiction upheld, 3 No jurisdiction over insurer)2013, Appellate Term: 4 decisions (1 Jurisdiction upheld, 1 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2011, Appellate Term: 3 decisions (3 Service defective)2010, Appellate Term: 5 decisions (2 Jurisdiction upheld, 3 No jurisdiction over insurer)2009, Appellate Term: 2 decisions (2 Jurisdiction upheld)2007, Appellate Term: 2 decisions (2 Service defective)2006, Appellate Term: 1 decision (1 Jurisdiction upheld)2004, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 No jurisdiction over insurer)2023, Appellate Term: 1 decision (1 Jurisdiction upheld)2025, Appellate Term: 2 decisions (2 Hearing or discovery needed)2026, Appellate Term: 2 decisions (2 Jurisdiction upheld)2005, Appellate Term: 1 decision (1 Service defective)2024, Appellate Term: 1 decision (1 Jurisdiction upheld)2023, Trial courts: 1 decision (1 Jurisdiction upheld)2021, Trial courts: 1 decision (1 Service defective)2012, Trial courts: 1 decision (1 Jurisdiction upheld)2009, Trial courts: 1 decision (1 Jurisdiction upheld)2008, Trial courts: 2 decisions (2 Service defective)2005, Trial courts: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2004, Trial courts: 1 decision (1 Jurisdiction upheld)2003, Trial courts: 1 decision (1 Service defective)2026, Trial courts: 4 decisions (1 Jurisdiction upheld, 2 Service defective, 1 No jurisdiction over insurer)2025, Trial courts: 1 decision (1 Service defective)This decision
20052010201520202025
Jurisdiction upheldService defectiveNo jurisdiction over insurerHearing or discovery neededObjection waived/not requiredThis decisionCites it or cited by itCited or followed

Of the 129 decisions on this question in the Second Department courts and the Court of Appeals, 57 (this one included) are in the same category.

Cited in this decision

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

  • Compas Med., P.C. v American Ind. Ins. Co. (2015 NY Slip Op 50481(U)) FollowedThe provider's request for jurisdictional discovery was unpreserved and lacked tangible evidence that jurisdictional facts might exist.
  • Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co. (2019 NY Slip Op 50635(U))The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
  • Lida’s Med. Supply, Inc. v American Ind. Ins. Co. (2019 NY Slip Op 50502(U))The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal.
  • Pavlova v American Ind. Ins. Co. (2018 NY Slip Op 50943(U)) FollowedThe provider failed to establish personal jurisdiction over a Pennsylvania insurer through counsel's unsupported affirmation.
  • Matter of American Ind. Ins. Co. v Nova Acupuncture, P.C. (2016 NY Slip Op 02357) DistinguishedThe out-of-state insurer's duty to arbitrate required a hearing on its control relationship with an authorized New York insurer.
  • American Ind. Ins. Co. v Art of Healing Medicine, P.C. (2013 NY Slip Op 01546) FollowedLack of personal jurisdiction over an insurer is not a ground to stay arbitration under CPLR 7503 (b).

Cited by

  • Healthwise Med. Assoc., P.C. v Safe Auto Ins. Co. (2026 NY Slip Op 50986(U))The insurer obtained dismissal because it had not transacted business or contracted to supply services or insurance coverage in New York. The Civil Court, Kings County, granted dismissal under CPLR 3211 (a) (8) for lack of long-arm jurisdiction under CPLR 302 (a) (1).

Similar decisions

  • Parisien v American Ind. Ins. Co. (2019 NY Slip Op 51965(U))The provider's attorney affirmation lacked personal knowledge and failed to establish long-arm jurisdiction over the out-of-state insurer.
  • Excel Prods., Inc. v American Ind. Ins. Co. (2019 NY Slip Op 51964(U))The provider failed to establish personal jurisdiction over the out-of-state insurer through an attorney affirmation lacking personal knowledge.
  • Vladenn Med. Supply Corp. v American Ind. Ins. Co. (2021 NY Slip Op 21338)The provider failed to establish personal jurisdiction over the Pennsylvania insurer with counsel's unsupported affirmation.
  • JCC Med., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 50642(U))The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
  • Domny Med. Servs., P.C. v First Acceptance Ins. Co., Inc. (2019 NY Slip Op 52048(U))The provider failed to establish personal jurisdiction because it supplied no signed acknowledgment of service under CPLR 312-a. The provider mailed the summons and complaint to an out-of-state insurer, which moved before answering to dismiss under CPLR 3211 (a) (8).
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