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

Leading authorities

• Montefiore Med. Ctr. v Auto One Ins. Co. (2008 NY Slip Op 10596) Appellate Division, Second Department, 2008§ 1212 service binds insurer; bare denial of receipt failsService by delivery to the Assistant Deputy Superintendent and Chief of Insurance under Insurance Law § 1212 was proper; the insurer did not claim its address on file was wrong, and its mere denial of receipt did not rebut the presumption created by the affidavit of service. Vacatur was denied under both CPLR 5015 (a) (1) and CPLR 317.

  The defendant did not contend that the address on file with the Superintendent of Insurance was incorrect, and the mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by the affidavit of service

• American Ind. Ins. Co. v Art of Healing Medicine, P.C. (2013 NY Slip Op 01546) Appellate Division, Second Department, 2013No personal jurisdiction needed for no-fault arbitrationLack of personal jurisdiction over an out-of-state insurer (American Independent) is not a ground under CPLR 7503 (b) to permanently stay no-fault arbitration; the question is the arbitrator's authority under the policy, and Gutierrez-Guzman and Basedow apply only where a court proceeding seeks to bind the insurer.

  In short, personal jurisdiction is not required for arbitration that is controlled by the parties’ agreement. Therefore, the Supreme Court erred in granting the petition to permanently stay arbitration on the ground that there was no personal jurisdiction over AIIC.

  Later history: In a second proceeding over the same claims, Matter of American Ind. Ins. Co. v Nova Acupuncture, P.C. (2d Dept 2016, post 5196) held AIIC was not barred from contesting arbitrability under Insurance Law § 5107 and remitted for a hearing on common control with an authorized insurer.
• NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co. (2004 NY Slip Op 24526) Appellate Term, Second Department, 2004Plaintiff's burden; discovery only on tangible 'sufficient start'Where an out-of-state insurer served through the Superintendent showed it was not doing business in New York City, the plaintiff bore the burden of showing jurisdiction; conclusory allegations on information and belief were not the 'sufficient start' needed for jurisdictional discovery under CPLR 3211 (d) and Insurance Law § 1213, so the complaint had to be dismissed. The court below also erred by doing its own Internet research.

  In order to demonstrate that “facts essential to justify opposition [to the motion to dismiss] may exist” (CPLR 3211 [d]), plaintiff needed to make more than conclusory allegations, and needed to submit some tangible evidence to substantiate its allegations

  Later history: Reverses the Civil Court, Queens County order; the majority said that court's later decision on reargument (3 Misc 3d 925, 2004 NY Slip Op 24115, post 10444) should not be followed. Pesce, P.J., dissented (the court could notice from the Insurance Department's website that the insurer was licensed, so § 1212 service conferred jurisdiction).
• Flatlands Med., P.C. v AAA Ins. (2014 NY Slip Op 24048) Appellate Term, Second Department, 2014Unauthorized out-of-state insurer: no §§ 1212-1213 or long-arm jurisdictionAn out-of-state insurer that showed it was not authorized in New York and wrote no business here could not be reached through service on the Superintendent under Insurance Law § 1212 or § 1213, nor under CCA 404; the insured's driving into New York was not enough, and the plaintiff offered no evidentiary facts, so jurisdiction was never acquired.

  We further note that the mere unilateral act of an automobile insurer’s insured of driving into New York State, without more, is insufficient to permit a New York court to exercise long-arm jurisdiction over the out-of-state insurer

• Pavlova v American Ind. Ins. Co. (2018 NY Slip Op 50943(U)) Appellate Term, Second Department, 2018Counsel's affirmation cannot show long-arm jurisdiction over insurerAmerican Independent's employees' affidavits made a prima facie showing that the Civil Court lacked personal jurisdiction over the Pennsylvania insurer; plaintiff's attorney's affirmation, made without personal knowledge, did not make the prima facie showing of jurisdiction under CCA 404 (a), so the CPLR 3211 (a) (8) motion was granted.

  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.

• Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co. (2015 NY Slip Op 25164) Appellate Term, Second Department, 2015CPLR 312-a service incomplete without signed acknowledgmentMail service under CPLR 312-a was never completed because the insurer never signed and returned the acknowledgment of receipt and the plaintiff tried no other method; an answer pleading the jurisdictional defense was not an appearance, and with no action pending the insurer did not waive the defense by not moving within 60 days (CPLR 3211 [e]).

  The record in the present case reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. Consequently, plaintiff was required to effect personal service in another manner (see CPLR 312-a [e]; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]).

• Matter of Eagle Ins. Co. v Gutierrez-Guzman 21 AD3d 489No long-arm jurisdiction over out-of-state insurer American Independent; the insured's unilateral act of driving into New York is not enough. Cited by 23 decisions in the database (the 2019 American Independent series, Flatlands, Healthwise).Not in our database.
• Matter of Government Empls. Ins. Co. v Basedow 28 AD3d 766Dismissed for lack of personal jurisdiction a petition to add the out-of-state insurer as a party; distinguished in Art of Healing.Not in our database.
• Fischbarg v Doucet 9 NY3d 375The party asserting jurisdiction bears the burden of proof; cited in RAZ (7610), JC Healing Touch (6104), Flatbush (5928), Dakiroks (19237).Not in our database.
• Peterson v Spartan Indus. 33 NY2d 463Jurisdictional discovery requires a non-frivolous 'sufficient start'; cited in NYC Med., Compas, Nica, Vladenn.Not in our database.
• Fashion Page v Zurich Ins. Co. 50 NY2d 265Corporate service sustained where the process server reasonably relies on an employee's claim of authority (Pain Mgt. Ctr. of N.J., 17366).Not in our database.
• Gager v White 53 NY2d 475An unraised personal-jurisdiction objection is waived by participating in the litigation (Central Radiology 6278, Masigla 2971, Charles Deng 2555).Not in our database.
• Pohlers v Exeter Mfg. Co. 293 NY 274Service on a state officer designated by consent is valid beyond a local court's territorial limits; basis of the Buffalo § 1212 decisions (8352, 8390).Not in our database.
• Dominguez v Stimpson Mfg. Corp. 207 AD2d 375If the CPLR 312-a acknowledgment is not returned, the plaintiff must serve another way; cited in Gateway, St. Dominick, Hellander, Active Care.Not in our database.
• Matter of Star Boxing, Inc. v DaimlerChrysler Motors Corp. 17 AD3d 372A notice of petition must be served like a summons (CPLR 403 [c]); cited for article 75 petitions served on an insurer's attorney (R.J. Professional 9170, Eagle v Republic W. 8478).Not in our database.
• Rosa v Allstate Ins. Co. 981 F2d 669Cited by Torres-Jimenez, Delacruz-Gomez and Dakiroks for VTL § 253 not reaching an insurer.Not in our database.

How the rule was applied, by court

Decisions (137)

Every decision in our database that rules on this question: highest court first, then by department, newest first. 106 turn on it; the others rule on it alongside a different main ground (marked "also decides"). The one-sentence summaries describe what each court said on this question.