NYC Medical & Neurodiagnostic, P.C. v. Republic Western Insurance

8 Misc. 3d 33
CourtAppellate Terms of the Supreme Court of New York
DecidedDecember 22, 2004
StatusPublished
Cited by8 cases

This text of 8 Misc. 3d 33 (NYC Medical & Neurodiagnostic, P.C. v. Republic Western Insurance) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
NYC Medical & Neurodiagnostic, P.C. v. Republic Western Insurance, 8 Misc. 3d 33 (N.Y. Ct. App. 2004).

Opinion

OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, reversed without costs and defendant’s motion to dismiss the complaint granted.

Plaintiff medical provider commenced this action to recover first-party no-fault benefits in the sum of $4,126.89 for medical services rendered to plaintiffs assignor for injuries she allegedly sustained in an automobile accident which occurred in the Bronx on December 7, 2001. Plaintiffs assignor was a passenger in a U-Haul vehicle insured by defendant, an Arizona corporation. Service of the summons and complaint was made on the New York State Department of Insurance. An answer was interposed denying the allegations of the complaint which asserted that defendant was licensed and authorized to do business in the State of New York and that it transacted business in [35]*35the City of New York, and which included an affirmative defense that the court lacked jurisdiction over defendant. In support of a subsequent motion to dismiss for lack of jurisdiction, based on CCA 404 (a), defendant’s New York claims manager submitted an affidavit in which he averred that defendant was an Arizona corporation which neither wrote nor sold insurance in the State of New York, nor had any agent in the State of New York, that defendant was the sole insurer for U-Haul, Inc., an Arizona corporation, and that the policy was written and sold in Arizona. Defendant had a claims office in Westchester County. He further stated that defendant did not write, sell or solicit any insurance policies to any entities within New York City, did not provide goods or services within New York City, and did not transact business in New York City.

In its opposition papers, plaintiffs counsel argued that “upon information and belief,” defendant actively engaged in the solicitation of business and the writing of insurance policies to residents of New York City, which activities constituted the transaction of business as well as the contracting to supply goods and services in New York City. Documentation purported to be in support of its argument consisted of various police accident reports from other accidents where U-Haul vehicles were involved as well as several no-fault denial of claim forms where the “policy holder” was identified as defendant.

After the return date of the motion, the court requested that the parties send to it additional documentation which included the police report pertaining to the instant accident, the addresses of the assignee and its assignor, registration information for the U-Haul vehicle at issue, a copy of the insurance policy between defendant and U-Haul’s parent company, Amerco, the insurance identification card for the U-Haul vehicle, and a copy of the U-Haul rental contract with a computerized printout regarding the lease transaction between U-Haul and the lessee. These materials showed that both plaintiffs assignor and the lessee were Bronx residents and that the accident occurred in the Bronx. U-Haul Co. of Arizona was listed in the police report as the registered owner of the vehicle. A business automobile insurance policy had been issued by defendant, an Arizona corporation, to its named insured, Amerco, also an Arizona corporation, indicating that there was a New York specific endorsement providing no-fault coverage. The Arizona automobile insurance card for the vehicle showed that defendant was its insurer and that the insured was “Amerco et al, including [36]*36U-Haul.” The U-Haul rental contract stated that its customers were insured by a business auto policy providing the minimal limits of the state where the accident occurred.

In its decision and order denying the motion to dismiss, the court below made numerous findings of fact based not upon the submissions of counsel but rather upon its own Internet research. Among those findings, from defendant’s own Web site, were that defendant was a wholly owned subsidiary of Amerco, whose other major subsidiaries included, inter alia, U-Haul, and that defendant was a “full service insurance company” which specialized, in part, in vehicular liability, operated in 49 states, and received approximately $170 million in premiums annually. From U-Haul’s Web site, the court found, among other things, that U-Haul was the largest consumer truck and trailer rental operation in the world, and operated in all 50 states, that there were at least nine Queens U-Haul facilities, and that U-Haul promoted career opportunities for defendant, its sibling corporation. Finally, the court found, by going to the Web site of the New York State Department of Insurance, that, contrary to counsel’s denial, defendant had been “licensed to do insurance business” in this state since April of 1980.

The court below did not make a specific finding as to whether defendant, under CCA 404 (a) (1), either in person or through an agent “transacts any business within the city of New York or contracts anywhere to supply goods or services in the city of New York.” Instead, it based its decision to deny the motion to dismiss on the policy considerations behind sections 1212 and 1213 of the Insurance Law, as well as the No-Fault Law.

In our opinion, the court below erred in denying defendant’s motion to dismiss.

Generally, where a defendant moves to dismiss an action on jurisdictional grounds, and where such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained. So long as plaintiff has made a discernible showing that some basis for jurisdiction exists, the court in which the action has been brought has the power to determine whether it has jurisdiction. Whenever a plaintiff makes a “sufficient start,” i.e., a nonfrivolous showing that facts pertinent to an acceptable basis for jurisdiction may exist, a plaintiff is entitled to jurisdictional discovery, and thus need not make a prima facie showing of jurisdiction at the prediscovery stage (see Weinstein-Korn-Miller, NY Civ Prac 1Í 301.07; see also Peterson v Spartan Indus., 33 NY2d 463 [37]*37[1974]). Indeed, CPLR 3211 (d) permits a court to deny a motion to dismiss made under CPLR 3211 (a) or to order a continuance to enable a plaintiff to secure additional proof or to conduct further discovery, where “facts essential to justify opposition may exist” but are not available to it.

By serving process on the Superintendent of Insurance, plaintiff was aware that it was basing jurisdiction over defendant by virtue of either section 1212 or section 1213 of the Insurance Law, both of which provide that such service is deemed to have been made “within the territorial jurisdiction of any court in this state” (Insurance Law § 1212 [b]; § 1213 [b] [2]). Indeed, in its complaint, plaintiff alleged that defendant was “licensed and authorized to do business in the State of New York,” thereby implicitly alleging jurisdiction under Insurance Law § 1212. In addition, the complaint alleged that defendant “transacts business in the City of New York,” apparently claiming, in the alternative, that jurisdiction could be based on Insurance Law § 1213.

In opposition to defendant’s motion, plaintiff alleged that it needed to conduct jurisdictional discovery in order to obtain information about defendant’s sale and underwriting of insurance policies to New York City residents in order to establish that defendant did in fact transact business and contract to sell goods and services within the City of New York.

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Bluebook (online)
8 Misc. 3d 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nyc-medical-neurodiagnostic-pc-v-republic-western-insurance-nyappterm-2004.