Advanced Med. v Progressive Cas. Ins. Co.

[*1] Advanced Med. v Progressive Cas. Ins. Co. 2005 NY Slip Op 50945(U) Decided on June 24, 2005 District Court Of Nassau County, First District Marber, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2005
District Court of Nassau County, First District

ADVANCED MEDICAL as assignee of ANNETTE BROWN, Plaintiff,

against

PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant.



31747/03



DASH & BURNS, ESQS., 400 JERICHO TURNPIKE, JERICHO, NY, ATTORNEYS FOR PLAINTIFF; FREIBERG & PECK, LLP, 12 EAST 41ST ST., NEW YORK, NY 10017, ATTORNEYS FOR DEFENDANT

Randy Sue Marber, J.

The plaintiff moves for an order granting summary judgment against the defendant, pursuant to CPLR 3212. The defendant cross-moves for an order (1) changing the venue of this action from Nassau County to Sullivan County, (2) for dismissal of the action based upon improper venue, or, in the alternative, (3) for an order granting summary judgment against the plaintiff. The underlying cause of action seeks a judgment for over due no-fault benefits, statutory interest and attorney's fees as a result of medical testing services allegedly rendered by the plaintiff to Annette Brown as a result of a motor vehicle accident which occurred on December 4, 2002.

In the cross-motion, the defendant argues that the plaintiff is located in Sullivan County and that the defendant "maintains its main place of business" in Albany, New York. In opposition to the cross-motion, the plaintiff claims that the defendant is precluded from making this request because the motion is untimely. Notwithstanding the arguments set forth in the motions, the Court does not have jurisdiction to transfer actions to different counties. Pursuant to UDCA §306, the only jurisdiction conferred on the Court is to transfer within the different districts within the same county. Accordingly, that branch of the defendant's motion for a change of venue is denied.

As to the plaintiff's motion for summary judgment, the plaintiff contends that its claim for no-fault benefits was timely forwarded to the defendant and that the defendant neither paid the claim within the allotted statutory period of thirty (30) days nor extended the time period by requesting [*2]additional verification on the prescribed forms. Thus, the plaintiff contends that the defendant is now precluded from denying coverage and that the plaintiff

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is entitled to summary judgment as no remaining unresolved questions of fact exist. In support of its motion, the plaintiff submitted an incomplete copy of the denial of claim form. As such, the plaintiff cannot properly establish a prima facie case. The moving papers are deficient pursuant to CPLR 3212(b). Further, no proof of mailing has been furnished by the plaintiff.

In opposition to the plaintiff's motion, and in support of the defendant's cross-motion for summary judgment, the defendant states that it allegedly received the plaintiff's claim form on January 10, 2003 and again on January 21, 2003 and that it timely denied the claim by forwarding an NF-10 denial form to the plaintiff on January 24, 2003. (See Affidavit of Christine A. Benda, Esq.).

The apparent sequence of events relative to the submission and handling of this claim is as follows:

1/21/03Bill received by the defendant

1/24/03Denial issued by defendant regarding improper assignment

3/19/03Claim re-submitted by plaintiff with assignment

4/9/03Denial issued by defendant based upon peer review

While the defendant claims that it generated a denial on January 24, 2003, because the plaintiff's assignor failed to submit a properly executed assignment of benefits, said denial was, according to the exhibits furnished with the cross-motion, in fact, not issued until April 9, 2003. It is only in defendant's reply papers that a copy of the earlier denial is annexed. This is patently improper on a motion for summary judgment. Notwithstanding that the defendant received a properly executed assignment on March 19, 2003, the defendant has not submitted proof along with its cross-motion that it followed the proper procedure for making a timely valid verification request (see 11 NYCRR 65-5.3).

Defendant's motion to dismiss for improper venue, is actually seeking to dismiss because of "lack of long arm jurisdiction" pursuant to CPLR 3211(a)(8) and UDCA 404. Nassau County is the proper venue to entertain this motion. The plaintiff commenced this action by serving a summons and complaint upon the defendant by serving the New York State Superintendent of Insurance in Albany, New York. No proof has been provided by the plaintiff showing that the defendant maintains an office in Nassau County. As personal delivery of the summons to the defendant was not effecuated within Nassau County, the defendant must be deemed to be a non-resident of Nassau County. UDCA 404(d).

To properly serve the defendant, the plaintiff must comply with the mandates of Uniform

District Court Article 4 - Summons. UDCA §403 states: [*3] Service of summons shall be made in the manner prescribed in supreme court practice, including optional method of service by mail authorized by CPLR §312-a, but it shall be made only within the county unless service beyond the county be authorized by law in this act or elsewhere.

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In the case at bar, the plaintiff served the defendant outside Nassau County. To sustain jurisdiction of service outside Nassau County, the criteria of UDCA §404 must be satisfied. UDCA §404 states in part: (a) Acts which are the basis of jurisdiction. The court may exercise personal jurisdiction over any non-resident of the county, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state and a resident of the county, if, in person or through an agent; he:

1. transacts any business within the city; or

2. commits a tortious act within the city, except as a cause of action for defamation of character arising from the act; or

3. owns, possesses any real property within the city.

As this suit is based in breach of contract, we are only concerned with whether the cause of action arose in Nassau County due to the defendant's transaction of business in Nassau County.

Pursuant to UDCA 404(a)(1), the District Court may exercise jurisdiction over a non-resident of Nassau County if a person transacts any business within a district of the court and the cause of action arises from that transaction of business (see also, Coffman v. National Union Fire Insurance Company of Pittsburgh, Pa., 60 Misc 2d 81, 302 NYS2d 480 [Dist Ct, Nassau County, 1969]).

Even if the plaintiff could prove that the defendant transacts business in Nassau County, the second requirement to establish long arm jurisdiction is that the act forming the subject matter of the action must arise from the transaction of business in Nassau County.

In support of its motion, defendant maintains that the acts complained of in plaintiff's complaint neither occurred in Nassau County nor had any connection with the County of Nassau. The accident took place in Sullivan County, the plaintiff's assignor lives in Sullivan

County and the health services were provided in Sullivan County. Therefore, the defendant argues that the elements necessary for the Court to exercise personal jurisdiction over a non-resident under UDCA 404(a) are not present.

The defendant has established a prima facie case on its cross-motion to dismiss. The burden [*4]is now on the plaintiff to establish that there is a basis for long arm jurisdiction over the defendant. The Court finds that the plaintiff has not demonstrated that the defendant did transact business within Nassau County and that this cause of action arose from the transaction of that business. The accident occurred outside of Nassau County, the treatment occurred outside of Nassau County, and the assignor resided outside of Nassau County.

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Furthermore, the Court notes that for reasons that remain unclear, this County has lately been made the "Court" for disputes over no-fault benefits arising between litigants residing in counties outside this jurisdiction. The only connection that matter has with Nassau County is that the office of the plaintiff's attorney is in Nassau County.

In view of the above, this Court does not have jurisdiction over the person of the defendant. The defendant's cross-motion dismissing the plaintiff's complaint is granted and the plaintiff's motion for summary judgment is denied. The defendant's cross-motion for summary judgment is also denied.

Dated: __________

ENTER:

__________________________________

Randy Sue Marber, District Court Judge

cc: Dash & Burns, Esqs.

Freiberg & Peck, LLP