Metro Health Prods., Inc. v Access Gen. Ins. Co.

[*1] Metro Health Prods., Inc. v Access Gen. Ins. Co. 2014 NY Slip Op 50348(U) Decided on February 28, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2012-1809 K C.

Metro Health Products, Inc. as Assignee of GEORGE FOSTER, Appellant,

against

Access General Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 21, 2012. The order 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 to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the court lacked personal jurisdiction over defendant. In an affidavit in support of the motion, defendant's litigation specialist asserted that defendant is a Georgia-based corporation, which is not authorized to conduct business in New York State, does not issue or deliver contracts of insurance to New York State residents or to corporations authorized to do business in New York, does not solicit applications for contracts of insurance within New York State, does not have a power of attorney on file with the State of New York, has not filed a consent to service or declaration that its insurance policy be deemed in compliance with New York Vehicle and Traffic Law § 311 and does not control any New York State authorized company. In opposition to the motion, plaintiff's attorney submitted an affirmation wherein he stated, in a conclusory manner, that defendant may have an agent which operates in New York and asserted that discovery is needed to determine that issue. By order entered June 21, 2012, the Civil Court granted defendant's motion to dismiss the complaint.

Section 404 of the New York City Civil Court Act sets forth the basis for the Civil Court's exercise of personal jurisdiction over nonresidents of the City of New York, such as defendant herein. Defendant's motion papers demonstrated that it has done none of the acts enumerated in CCA 404 within the City of New York with respect to plaintiff's cause of action, so as to bring it within the Civil Court's long-arm jurisdiction. In its opposition papers, plaintiff failed to rebut defendant's showing. Instead, plaintiff argued that discovery was necessary to determine whether there was proper jurisdiction. However, plaintiff failed to establish that facts essential to justify opposition may exist but are not available to it, thereby warranting discovery (see CPLR 3211 [d]; Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008]; Roldan v Dexter Folder Co., 178 AD2d 589 [1991]; 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]). Consequently, defendant's motion to dismiss the complaint was properly granted. [*2]

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014