Matter of American Tr. Ins. Co. v Hoque

Matter of American Tr. Ins. Co. v Hoque 2007 NY Slip Op 08389 [45 AD3d 329] November 8, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

In the Matter of American Transit Insurance Company, Respondent,
v
Mohammed J. Hoque, Respondent, and American Independent Ins. Co., Proposed Respondent-Appellant, et al., Proposed Respondent.

—[*1] Freiberg & Peck, LLP, New York City (Evan M. Wegrzyn of counsel), for appellant.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 21, 2007, which, in a proceeding by an insurer to stay an uninsured motorist arbitration demanded by respondent, insofar as appealed from, granted respondent's motion to add appellant, an insurer, as an additional respondent, and denied appellant's motion to dismiss the proceeding as against it for lack of personal jurisdiction, unanimously reversed, on the law, without costs, appellant's motion granted, and respondent's motion denied.

Appellant demonstrated, without rebuttal, that it is not doing business in New York (CPLR 301), since it is a Pennsylvania company not licensed to do business in New York, it maintains no offices in New York, has no bank accounts here, has no agents operating out of or representatives soliciting business in New York and does not own or possess real property in New York. Nor is appellant transacting business in New York (CPLR 302); that the driver of the offending vehicle, which was registered in Pennsylvania, drove in this state is not "purposeful activity" on the part of appellant. Accordingly, New York does not have personal jurisdiction over appellant (see Matter of Government Empls. Ins. Co. v Basedow, 28 AD3d 766 [2006]). While not mentioned by the parties, we note that our decision in Matter of Preferred Mut. Ins. Co. (Fu Guan Chan) (267 AD2d 181 [1999]) is not to the contrary. In Preferred, we directed a hearing to determine whether there was jurisdiction over the insurer since, while the evidence that it did not do business in New York was the same as here, the driver of the offending vehicle was a New York resident, so the insurer may have been transacting business in this state by knowingly issuing policies to New York drivers (see Bunkoff Gen. Contrs. v State Auto. Mut. Ins. Co., 296 AD2d 699 [2002]). Concur—Andrias, J.P., Saxe, Nardelli, McGuire and Malone, JJ.