Tam Med. Supply Corp. v. American Ind. Ins. Co.

Tam Med. Supply Corp. v American Ind. Ins. Co. (2022 NY Slip Op 50560(U)) [*1] Tam Med. Supply Corp. v American Ind. Ins. Co. 2022 NY Slip Op 50560(U) [75 Misc 3d 136(A)] Decided on June 3, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2019-1467 K C & 2019-1468 K C Tam Medical Supply Corp., as Assignee of Destin, Woldine, Respondent, against American Independent Ins. Co., Appellant, Omni Indemnity Company, American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, Defendants. Tam Medical Supply Corp., as Assignee of Destin, Woldine, Respondent, against American Independent Ins. Co., Appellant, Omni Indemnity Company, American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, Defendants. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants American Independent Ins. Co. and Good2Go Auto Insurance. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed). Appeals from orders of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), each entered November 20, 2018. The first order (appeal No. 2019-1467 K C) denied a motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. The second order (appeal No. 2019-1468 K C), insofar as appealed from, denied the branches of a motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance. ORDERED that the appeals are consolidated for purposes of disposition; and it is further, ORDERED that the order being appealed under appeal number 2019-1467 K C is reversed, with $30 costs, and the motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. is granted; and it is further, ORDERED that the order being appealed under appeal number 2019-1468 K C, insofar as appealed from, is reversed, with $30 costs, and the branches of the motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance are granted. In this action by a provider to recover assigned first-party no-fault benefits, the affidavit [*2]of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff's papers do not contain an acknowledgment of service. Defendant American Independent Ins. Co. moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had failed to obtain personal jurisdiction over it. Defendants American Independent Insurance Companies, Inc., Good2Go Auto Insurance and Omni Indemnity Company moved, in a single motion, to dismiss so much of the complaint as was asserted against them on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff opposed both motions and cross-moved for summary judgment. Defendant American Independent Ins. Co. appeals (appeal No. 2019-1467 K C) from an order of the Civil Court entered November 20, 2018 denying the motion to dismiss the complaint insofar as asserted against it. Defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance appeal (appeal No. 2019-1468 K C) from so much of a separate order of the Civil Court, also entered November 20, 2018, as denied the branches of the motion seeking to dismiss so much of the complaint as was asserted against them. For the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co. (69 Misc 3d 127[A], 2020 NY Slip Op 51118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order being appealed under appeal number 2019-1467 K C and the order being appealed under appeal number 2019-1468 K C, insofar as appealed from, are reversed. The first motion, by defendant American Independent Ins. Co., is granted, and the branches of the second motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance are granted. ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 3, 2022