Carothers v Liberty Mut. Ins. Co.

[*1] Carothers v Liberty Mut. Ins. Co. 2006 NY Slip Op 51798(U) [13 Misc 3d 1212(A)] Decided on September 22, 2006 Civil Court Of The City Of New York, Richmond County Sweeney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2006
Civil Court of the City of New York, Richmond County

Andrew Carothers, Assignee of Mujahid Alam, Plaintiff, Liberty Mutual Insurance Company, Defendant.



8104/06



Attorney for Plaintiff, Andrew Carothers, M.D., P.C. (In Both cases):

Gregory Cherchione, Esq.

2444 Broadway, Suite 362

New York, NY 10024

Tel.: (212) 285-3800

Attorneys for Liberty Mutual Insurance Company (In Both Actions):

Burke, Lipton Puleo, McCarthy & Gordon

10 Bank Street, Suite 1040

White Plains, NY 10606

Tel.: (914) 997-8100

Peter P. Sweeney, J.

In this action to recover assigned first-party no-fault benefits, defendant moves for an order changing the venue of this action to Bronx County.

The venue provision of the Civil Court Act that governs transitory actions is Civil Court Act § 301. Civil Court Act § 301[a], as it pertains to the issue at hand, provides that "an action. . . shall be brought in . . .the county in which one of the parties resides at the commencement thereof." Defendant contends that plaintiff improperly set venue in Richmond because neither plaintiff nor the defendant are residents of Richmond County.

In support of its contention that plaintiff is not a resident of Richmond County, defendant annexed various medical records indicating that plaintiff's assignor resides in Bronx County. "If the plaintiff is an assignee of the cause of action, the original owner of the cause of action shall be deemed the plaintiff for the purpose of determining proper venue" (Civil Court Act § 305[a] ).

In support of its contention that defendant is not a Richmond County resident, defendant submitted the affidavit of one of its claims managers who stated that "Liberty does not have any claims, sales or offices of any kind in Richmond County, NY All no-fault bills are submitted to the New York State No-Fault office in Suffolk County." The nearest claims office is in Nassau County. The nearest sales office to Richmond County is located in Kings County at 4201 Avenue M in Brooklyn. The nearest legal office is in New York County."

Under the Civil Court Act, "[a] corporation . . . shall be deemed a resident of any county wherein it transacts business, keeps an office, has an agency or is established by law " (Civil Court Act § 305[b]). The issue presented, as the court sees it, is whether defendant's submissions demonstrated that defendant does not "transact business" within Richmond County within the meaning of (Civil Court Act § 305[b]). The Court holds that they do did not.

Defendant's submissions did not foreclose the very distinct possibility that defendant issues insurance policies covering Richmond County residents. Likewise, defendant's [*2]submissions did not foreclose the distinct possibility that defendant engaged in purposeful activity in Richmond County by regularly corresponding, by mail and/or telephone, with its policy holders in Richmond County by delivering insurance policies, sending invoices and seeking and collecting premiums from them. These acts, in the court's view, would be sufficient to establish that defendant transacts business in Richmond County (see Mingmen Acupuncture Services, P.C. v. American Transit Ins. Co., 183 Misc 2d 270, 280 [Civ. Ct, Bronx County, 1999, Victor, J.]; Neurologic Services, P.C. v. American Transit Ins. Co., 183 Misc 2d 496, 498 [Civil Ct., Bronx County 1999, Ruiz, J.]; see also Rung v. United States Fidelity and Guaranty Co., 139 AD2d 914, 915 [4th Dep 't 1988] ). The court respectfully disagrees with the opposite result reached in Quality Medical Healthcare, P.C. v. American Transit Ins. Co., 182 Misc 2d 991 [Sup. Ct., Bronx County, 1999, Brigantti-Hughes, J.].

Accordingly, it is hereby

ORDERED that defendant's motion is in all respects DENIED.

This constitutes the decision and order of the court.

Dated: September 22, 2006_____________________________

PETER P. SWEENEY

Civil Court Judge