December 12, 2013

J.C. Healing Touch Rehab, P.C. v Access Gen. Ins. Co. (2013 NY Slip Op 52086(U))

https://www.beynensonlaw.com/case-law/j-c-healing-touch-rehab-p-c-v-access-gen-ins-co-2013-ny-slip-op52086u/

Court: Appellate Term, Second Department
Decided: December 12, 2013
Citation: 2013 NY Slip Op 52086(U) · 41 Misc 3d 145(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Issues: Jurisdiction and service Discovery and procedure

Cite as

J.C. Healing Touch Rehab, P.C. v Access Gen. Ins. Co., 41 Misc 3d 145(A), 2013 NY Slip Op 52086(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 under CCA 404 (a). On renewal of its CPLR 3211 (a) (8) motion, the insurer supplied the previously missing certificate of conformity and an affidavit describing its Georgia offices and absence of New York business, policies, or employees. That evidence made a prima facie jurisdictional showing, shifting the burden to the provider. Counsel's affirmation lacked personal knowledge establishing any qualifying New York City contacts, and the provider did not establish entitlement to jurisdictional discovery. The Appellate Term, Second Department, affirmed the order granting renewal and, upon renewal, dismissing the complaint for lack of personal jurisdiction.

Reported in New York Official Reports at J.C. Healing Touch Rehab, P.C. v Access Gen. Ins. Co. (2013 NY Slip Op 52086(U))

[*1]

J.C. Healing Touch Rehab, P.C. v Access Gen. Ins. Co.

2013 NY Slip Op 52086(U) [41 Misc 3d 145(A)]

Decided on December 12, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 12, 2013

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

PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
.

J.C. Healing Touch Rehab, P.C. as Assignee of NESTOR XICOHTENCATL, Appellant, —
against
Access General Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 5, 2012. The order granted the branch of defendant’s motion seeking leave to renew its prior motion to dismiss the complaint, which had been determined by an order of the same court entered February 15, 2011, and, upon renewal, in effect, vacated the February 15, 2011 order and thereupon granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to reargue and renew its prior motion to dismiss the complaint pursuant to CPLR 3211 (a) (8). The prior motion, which sought dismissal on the ground that the Civil Court lacked personal jurisdiction over defendant, had been denied by order entered February 15, 2011 with leave to renew upon proper papers, as a certificate of conformity had been lacking. In support of its motion for leave to reargue and renew, defendant submitted a certificate of conformity, which accompanied an affidavit of defendant’s litigation specialist. The litigation specialist alleged, among other things, that defendant maintained offices in Atlanta, Georgia and that defendant is not authorized to conduct business in New York. He further stated that defendant does not issue or deliver contracts of insurance to New York State residents or corporations authorized to do business in New York and has never had any employees either located in or working to solicit business in New York. Plaintiff argued in opposition that the certificate of conformity was inadmissible and that defendant had failed to establish that the court lacked personal jurisdiction over defendant. Plaintiff additionally asserted that it was entitled to discovery to determine whether there was proper jurisdiction. Plaintiff appeals from an order of the Civil Court entered January 5, 2012 which granted the branch of defendant’s motion seeking leave to renew its prior motion to dismiss the complaint, and, upon renewal, in effect, vacated the prior order entered February 15, 2011 and thereupon granted defendant’s motion to dismiss the complaint.

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375, 381 n 5 [2007]). Here, defendant made a prima facie showing that personal jurisdiction had not been obtained [*2]over it based on any of the acts set forth in the Civil Court’s long-arm jurisdiction statute (CCA 404 [a]). In order for plaintiff to prove that the Civil Court had obtained personal jurisdiction over defendant, a corporation which is not a resident of the City of New York, plaintiff was required to establish that defendant either transacted business, contracted to supply goods or services, committed a tortious act, or used or possessed any real property within the City of New York (CCA 404 [a]; see Metro Fuel Oil Corp. v Broadway Hgts. Dairy, Inc., 36 Misc 3d 150[A], 2012 NY Slip Op 51663[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). The affirmation of plaintiff’s attorney offered in opposition to defendant’s motion failed to demonstrate that he possessed personal knowledge of the facts to show that some basis for jurisdiction existed. Furthermore, plaintiff did not establish that it was entitled to discovery to determine whether there was proper jurisdiction (see CPLR 3211 [f]; Viviane Etienne Med. Care., P.C. v United Auto. Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52151[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since plaintiff failed to show that defendant had contacts with the City of New York, the Civil Court properly dismissed the complaint.

Accordingly, the order is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 12, 2013

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v United Auto. Ins. Co. (2010 NY Slip Op 52151(U)) FollowedThe provider failed to establish personal jurisdiction over the Florida insurer or grounds for further jurisdictional discovery.

Similar decisions

Metro Health Prods., Inc. v Access Gen. Ins. Co. (2014 NY Slip Op 50348(U))The insurer established lack of personal jurisdiction, and the provider failed to justify jurisdictional discovery.
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.
Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 51736(U))The provider failed to establish personal jurisdiction over the out-of-state insurer through counsel's unsupported affirmation.
Flatbush Chiropractic, P.C. v Auto Club Ins. Assn., AAA Mich. (2014 NY Slip Op 50619(U))The insurer's lack of New York City contacts defeated personal jurisdiction under CCA 404.
J.C. Healing Touch Rehab, P.C. v Nationwide Ins. (2013 NY Slip Op 52011(U))The insurer's EUO scheduling letters were timely mailed and tolled the 30-day claim determination period.