Compas Med., P.C. v American Ind. Ins. Co.
2015 NY Slip Op 50481(U) [47 Misc 3d 134(A)]
Decided on March 26, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2015

2013-1551 Q C

Compas Medical, P.C. as Assignee of ASHLEY EMILIEN, Appellant, -


American Independent Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry L. Love, J.), entered May 29, 2013. The order granted defendant's motion to dismiss 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 to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the Civil Court lacked personal jurisdiction over defendant. In several affidavits in support of the motion, two of defendant's casualty managers as well as defendant's claims casualty supervisor asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no bank accounts in New York, has no agents operating out of or representatives soliciting business in New York, does not "contact" [sic] or solicit business in New York, and does not own, use or possess any real property in New York. In opposition to the motion, plaintiff submitted only an affirmation in which plaintiff's counsel conclusorily stated, among other things, that defendant was involved in the "transaction of business" (Insurance Law § 1213 [b] [1]; see also CCA 404 [a] [1]) in New York by "knowingly issuing policies to New York drivers" and by virtue of defendant's alleged establishment of an ongoing attorney-client relationship with New York defense counsel, thereby subjecting defendant to jurisdiction in New York. By order entered May 29, 2013, the Civil Court granted defendant's motion. On appeal, plaintiff's sole contention is that the Civil Court should have denied defendant's motion to dismiss and ordered jurisdictional discovery, pursuant to CPLR 3211 (d), because plaintiff could not properly oppose defendant's motion without such discovery.

Plaintiff's argument that "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3211 [d]) is not properly before us, as this contention is raised by plaintiff for the first time on appeal (see Copp v Ramirez, 62 AD3d 23 [2009]). Even if the argument were before us, neither the unverified complaint nor the conclusory affirmation of plaintiff's counsel in opposition to defendant's motion constituted the "tangible evidence" (Mandel v Busch Entertainment Corp., 215 AD2d 455, 455 [1995]) necessary to substantiate plaintiff's allegations that jurisdiction could exist, thereby demonstrating that plaintiff's assertion of the existence of a jurisdictional predicate was not "frivolous" (Peterson v Spartan Indus., 33 NY2d 463, 467 [*2][1974]). Thus, plaintiff did not make a "sufficient start" (id.) by showing that essential jurisdictional facts might exist to warrant discovery on the issue of personal jurisdiction over defendant. Consequently, defendant's motion to dismiss the complaint was properly granted.

Accordingly, the order is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decision Date: March 26, 2015