Flatbush Chiropractic, P.C. v Auto Club Ins. Assn., AAA Mich.

[*1] Flatbush Chiropractic, P.C. v Auto Club Ins. Assn., AAA Mich. 2014 NY Slip Op 50619(U) Decided on March 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2012-2130 Q C.

Flatbush Chiropractic, P.C. as Assignee of ADAMA NDIAYE, Appellant,

against

Auto Club Insurance Association, AAA Michigan, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 13, 2012. The order granted defendant's motion for summary judgment dismissing 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 summary judgment dismissing the complaint, contending that the New York City Civil Court lacked personal jurisdiction over it. Defendant further asserted that, in the event the court finds that it had acquired jurisdiction over defendant, summary judgment should be awarded to defendant based upon the collateral estoppel effect of a Michigan declaratory judgment which had determined that Michigan law applies to the matter and that the insurance policy at issue had been voided. In an affidavit in support of the motion, defendant's officer asserted, among other things, that defendant, a Michigan insurance company, is not authorized to conduct business in the State of New York, has not delivered any contracts of insurance to residents of the State of New York, does not maintain an office or agency in the State of New York and does not provide goods or services in the State of New York. In opposition to the motion, plaintiff submitted an affirmation by its counsel, who argued, among other things, that defendant had failed to establish that the Civil Court lacked jurisdiction, because the affidavit of defendant's officer was executed in Michigan and was not accompanied by a certificate of conformity. The Civil Court did not address defendant's jurisdictional argument and granted defendant's motion on the ground of the collateral estoppel effect of the Michigan declaratory judgment. This appeal by plaintiff ensued.

We note at the outset that where an issue of jurisdiction is raised as one among other grounds for dismissal, the jurisdictional issue must be determined first (cf. Citibank, N.A. v Keller, 133 AD2d 63 [1987]).

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 its entitlement to summary judgment dismissing the complaint for lack of jurisdiction, as defendant has done none of the acts enumerated in CCA 404 within the City of New York so as to bring it within the Civil Court's long-arm jurisdiction (see Flatlands Med., P.C. v AAA Ins., ___ Misc 3d ___, 2014 NY Slip Op [*2]24048 [App Term, 2d, 11th & 13th Jud Dists 2014]). The ultimate burden of proof as to jurisdiction rests with the party asserting jurisdiction (see Fischbarg v Doucet, 9 NY3d 375 [2007]; Sanchez v Major, 289 AD2d 320 [2001]; Cushley v Wealth Masters Intl., 29 Misc 3d 144[A], 2010 NY Slip Op 52221[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In the present case, plaintiff failed to meet its burden. Furthermore, contrary to plaintiff's contention, defendant's failure to submit a certificate of conformity was not a fatal error (see e.g. Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960 [2013]; Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680, 682 [2013]; Matos v Salem Truck Leasing, 105 AD3d 916 [2013]; Fredette v Town of Southampton, 95 AD3d 940, 942 [2012]; Flatlands Med., P.C. v AAA Ins., ___ Misc 3d ___, 2014 NY Slip Op 24048).

Accordingly, the order is affirmed, albeit on a ground other than that stated by the Civil Court. In view of the foregoing, we reach no other issue.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 31, 2014