Decided on December 6, 2019

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

Decided on December 6, 2019

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

Decided on December 6, 2019

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered February 13, 2018. The order, insofar as appealed from, upon renewal, adhered to the determination in a prior order of that court entered January 17, 2017 granting defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered February 13, 2018, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider, commenced in 2015, to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to submit the bills at issue to defendant. By order entered January 17, 2017, the Civil Court granted the motion, noting, among other things, that the bills had been addressed to “MVAIC” (Motor Vehicle Accident Indemnification Corporation), not defendant. Plaintiff moved, insofar as is relevant, for leave to renew its opposition to defendant’s motion and, upon renewal, for an order denying defendant’s motion. Plaintiff supported its motion with a new affidavit by its owner, who stated that the bills at issue had been “resubmitted to insurance carrier” on June 7, 2010. Defendant opposed the motion. Plaintiff appeals from so much of an order of the Civil Court entered February 13, 2018, as, upon renewal, adhered to its prior [*2]determination granting defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s arguments, the affidavit of defendant’s litigation claims specialist established that defendant had not received the claims at issue (see Alleviation Med. Servs., P.C. v 21st Century Ins. Co., 53 Misc 3d 128[A], 2016 NY Slip Op 51347[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Compas Med., P.C. v Farm Family Cas. Ins. Co., 49 Misc 3d 148[A], 2015 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and the affidavit submitted in support of plaintiff’s motion for leave to renew failed to demonstrate that the claim forms had been mailed to defendant, as plaintiff’s owner merely stated that the “documents were resubmitted to insurance carrier” without establishing the identity of the carrier to whom plaintiff had resubmitted the claim forms.

Plaintiff’s remaining arguments lack merit.

Accordingly, the order entered February 13, 2018, insofar as appealed from, is affirmed.

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

Decided on December 6, 2019

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 28, 2016, deemed from a judgment of that court entered December 27, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 28, 2016 order, which, in effect, converted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) into a motion for summary judgment dismissing the complaint, and thereupon denied the motion, and granted plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,563.01.

ORDERED that the judgment is reversed, with $30 costs, the order entered November 28, 2016 is vacated, defendant’s motion for, in effect, summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, after issue was joined, to dismiss the complaint pursuant to CPLR 3211 (a) (8). In multiple 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 [*2]that it had 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]). Plaintiff cross-moved for summary judgment and opposed the 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 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]). By order entered November 28, 2016, the Civil Court denied defendant’s motion to dismiss the complaint and granted plaintiff’s cross motion for summary judgment. Defendant’s appeal from the November 28, 2016 order is deemed from a judgment of that court entered on December 27, 2016 pursuant to the order (see CPLR 5501 [c]), awarding plaintiff the principal sum of $1,563.01.

Defendant’s moving papers establish that it served an answer in which it interposed the defense of lack of personal jurisdiction as an affirmative defense (CPLR 3211 [e]), and therefore that the defense was not waived. The Civil Court properly, in effect, converted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) into a motion for summary judgment dismissing the complaint for lack of personal jurisdiction, as plaintiff cross-moved for summary judgment and “the parties submitted facts and arguments clearly indicating that they were deliberately charting a summary judgment course” (Okeke v Momah, 132 AD3d 648, 648 [2015] [internal quotation marks omitted]; see also Mihlovan v Grozavu, 72 NY2d 506 [1988]).

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 [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.

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, [*3]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 plaintiff argues that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]), 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 judgment is reversed, the order entered November 28, 2016 is vacated, defendant’s motion for, in effect, summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 16, 2017. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $30 costs; and it is further,

ORDERED that, on the court’s own motion, counsel for the respective parties and Damin J. Toell, Esq., are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against The Rybak Firm, LLC and Damin J. Toell, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the clerk of this court and serving one copy of same on each other on or before January 3, 2020; and it is further,

ORDERED that the clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon counsel for the respective parties and Damin J. Toell, Esq.

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). In multiple 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 (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Plaintiff cross-moved for summary judgment and opposed the 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 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]). Plaintiff appeals, as limited by its brief, from so much an order of the Civil Court entered November 16, 2017 as granted defendant’s motion to dismiss the complaint.

Contrary to plaintiff’s contention, 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 [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.

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 [*2]court system” (American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 762-763 [2013]).

To the extent 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]).

We conclude that sanctions may be warranted for the conduct of The Rybak Firm, PLLC and Damin J. Toell, Esq., as their conduct appears to be frivolous (see Flushing Expo, Inc. v New World Mall, LLC, 116 AD3d 826 [2014]; Ram v Torto, 111 AD3d 814 [2013]). As relevant here, frivolous conduct includes the assertion of arguments that are “completely without merit in law and [which] cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [c] [1]). Here, although the order appealed from expressly stated that plaintiff’s arguments and the “evidence” upon which plaintiff relied had previously been considered and rejected by this court and that plaintiff’s remaining arguments were either contrary to a prior decision by the Appellate Division, Second Department, or predicated upon “speculative factual arguments,” plaintiff’s appellate brief does not appear to mention, let alone address, the prior decisions of this court or of the Appellate Division which may have rendered plaintiff’s appellate arguments frivolous.

In light of the foregoing, the order, insofar as appealed from, is affirmed, and, on the court’s own motion, counsel for the respective parties and Damin J. Toell, Esq., are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against The Rybak Firm, PLLC, and Damin J. Toell, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the clerk of this court and serving one copy of same on each other on or before January 3, 2020.

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

Decided on December 6, 2019

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

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered May 31, 2016. The judgment, upon the parties’ stipulation, among other things, that plaintiff had established a prima facie case and, insofar as appealed from as limited by the brief, upon the denial of defendant’s request for an adjournment of trial, awarded plaintiff the principal sum of $923.20.

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action on May 13, 2014 to recover assigned first-party no-fault benefits pertaining to an accident which had occurred on November 16, 2013. Upon defendant’s failure to answer the complaint or appear in the action, the Civil Court granted, on default, plaintiff’s motion for the entry of a default judgment. On February 13, 2015, following a motion by defendant to vacate the default, the parties entered into a two-attorney stipulation, which provided, among other things, that the “default judgment” was vacated, that the parties had established their respective prima facie cases, and that “there shall be no further motion practice [and] the case is ready to proceed to trial.” On July 22, 2015, the insurer commenced a declaratory judgment action in Supreme Court, New York County, against the present provider and its assignor, among other parties, involving a November 16, 2013 accident. On November 4, 2015, the Civil Court denied defendant’s application for an order to show cause seeking to stay the action in the Civil Court “pending the resolution” of the declaratory judgment action. [*2]Defendant applied again for the same relief on January 5, 2016, and the Civil Court (Katherine A. Levine, J.) denied the opposed motion on the ground that defendant and plaintiff had “executed a stipulation . . . agreeing that the matter shall proceed to trial with no further motion practice to be had.” At a nonjury trial which followed, the Civil Court (Reginald A. Boddie, J.) was advised of the parties’ stipulation and, after oral argument, denied defendant’s application for an adjournment. When defendant’s attorney stated that defendant was not prepared to proceed, the court granted plaintiff’s motion for the entry of a judgment in plaintiff’s favor. Defendant appeals from the judgment, which awarded plaintiff the principal sum of $923.20, contending on appeal solely that the Civil Court improvidently exercised its discretion in denying defendant’s application to adjourn the trial pending a determination by the Supreme Court of defendant’s motion for a declaratory judgment.

For the reasons stated in XVV, Inc., as Assignee of Camara, Mahamadou v Warner Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2018-804 K C], decided herewith), the judgment, insofar as appealed from, is affirmed.

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

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt and David Steigbigel of counsel), for appellant. Law Office of Aloy O. Ibuzor (Gina M. Spiteriof counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 3, 2017. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Plaintiff contends that the Civil Court should not have considered defendant’s motion for summary judgment dismissing the complaint because the motion was filed more than 120 days after the notice of trial had been filed. A motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and service of a motion upon a party’s attorney by mail is completed upon mailing (see CPLR 2103 [*2][b] [2]). It is uncontroverted that the notice of trial was filed on August 24, 2016. Consequently, the 120-day period expired on December 22, 2016. Since the affidavit of service of defendant’s motion states that defendant mailed the motion to plaintiff’s attorney on December 13, 2016, defendant’s motion for summary judgment dismissing the complaint was timely (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]).

Contrary to plaintiff’s contention, the affidavits submitted by defendant established its standard office practices and procedures for its mailing of denial of claim forms, and that the denials in the case at bar had been properly and timely mailed to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Moreover, defendant’s affidavits demonstrated that it had twice duly demanded an examination under oath from the assignor, that the assignor had twice failed to appear, and that defendant had denied the claims based on the assignor’s failure to appear (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff’s remaining contentions lack merit or are unpreserved for appellate review. Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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