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Axis Chiropractic, Pllc As Assignee of Felix Rafael v. United Automobile Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 8, 2010

AXIS CHIROPRACTIC, PLLC AS ASSIGNEE OF FELIX RAFAEL, APPELLANT,
v.
UNITED AUTOMOBILE INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered October 15, 2008.

Axis Chiropractic, PLLC v United Auto. Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2010

PRESENT: RIOS, J.P., PESCE and GOLIA, JJ

The order granted defendant's motion to dismiss the complaint, denied plaintiff's motion for an order compelling defendant to respond to plaintiff's discovery demands, and denied plaintiff's cross motion for, among other things, an order staying the proceedings and granting plaintiff leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, service of the summons and complaint was made on the Chief Financial Officer of the State of Florida pursuant to the long-arm statute (see CCA 404). In the complaint, plaintiff alleged that defendant, a Florida insurance company, was authorized to do business in the State of New York. In its answer, defendant denied the allegations set forth in the complaint and asserted numerous affirmative defenses, including lack of personal jurisdiction. Thereafter, defendant moved to dismiss the complaint based on lack of personal jurisdiction. In an affidavit in support of the motion, defendant's litigation specialist asserted that defendant is a Florida insurance company which is not authorized to do 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, does not solicit business in the State of New York, does not have a telephone listing in the State of New York, does not have any employees located in the State of New York, has not transacted any business in the State of New York and has not committed a purposeful act in the State of New York which would confer jurisdiction. Plaintiff moved for an order compelling defendant to respond to its discovery demands and subsequently cross-moved for, among other things, an order staying the proceedings and granting it leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC).

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375 [2007]). In its cross motion papers, plaintiff failed to show that some basis for jurisdiction existed; rather, it merely argued that the affidavit of defendant's litigation specialist was insufficient since he did not establish that he had the authority to speak on jurisdictional matters on behalf of defendant. Plaintiff further asserted that it was entitled to discovery to see whether there was proper jurisdiction. We find no merit to plaintiff's contention that the affidavit of defendant's litigation specialist was insufficient (see generally NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff failed to establish that facts essential to justify opposition may exist" but are not available to it, thereby warranting a continuance for further discovery (see CPLR 3211 [f]).

We turn next to plaintiff's contention, raised for the first time on appeal, that defendant's motion to dismiss pursuant to CPLR 3211 (a) (8) was improperly made after defendant had served its answer. Even if it be assumed that this contention is properly before us, we note that CPLR 3211 (c) provides that, after adequate notice to the parties, the court may treat a CPLR 3211 motion as a motion for summary judgment. It has been held that where, as here, a motion is mislabeled as a motion to dismiss pursuant to CPLR 3211 instead of CPLR 3212 and the opponent is not notified that the motion will be treated as a motion for summary judgment, the defect should be disregarded if it caused the plaintiff no prejudice (see Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Hertz Corp. v Luken, 126 AD2d 446 [1987]; see generally O'Hara v Del Bello, 47 NY2d 363 [1979]). Further, while defendant should have annexed a copy of its answer to its motion (CPLR 3212 [b]), this defect was properly overlooked by the Civil Court (see Rodriguez v Ford Motor Co., 62 AD3d 573 [2009]).

Finally, the Civil Court did not improvidently exercise its discretion in refusing to allow plaintiff to submit a late notice of claim to MVAIC. MVAIC is not a party to the instant action and, thus, the Civil Court has no jurisdiction over it.

Rios, J.P., Pesce and Golia, JJ., concur.

Decision Date: December 08, 2010

20101208

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